Angelo G. Faraci and Stephen G. Schwarz are among the 50 attorneys who received the highest point totals during the New York Super Lawyers-Upstate nomination, research and review process.

Faraci, of Rochester, is listed in the New York Super Lawyers in personal injury plaintiff: medical malpractice. He has been listed in New York Super Lawyers since 2007. Schwarz, of Fairport, is listed in personal injury plaintiff: medical malpractice. He has been named to New York Super Lawyers since 2007.

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The seven attorneys named in the 2012 edition of Best Lawyers are:

• Matthew F. Belanger, of Brighton, in the practice areas of personal injury litigation and product liability litigation. Belanger has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident has been named to Best Lawyers since 2009.
• Angelo G. Faraci, of Rochester, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, of Rochester, in medical malpractice law, personal injury litigation and product liability litigation. He was first named to Best Lawyers in 2001.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, of Fairport, in medical malpractice law, personal injury litigation and product liability litigation. Schwarz has been named to Best Lawyers since 1999.
• Brian M. Zorn, of Victor, in medical malpractice law, personal injury litigation and product liability litigation. Zorn has been named to Best Lawyers since 1995.

Best Lawyers is regarded, by both the legal profession and the public, as a definitive guide to legal excellence in the U.S. The new 2012 Best Lawyers is based on a rigorous national survey involving more than 3.9 million detailed evaluations of lawyers by other lawyers.

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The attorneys recognized are:

• Matthew F. Belanger, in the practice area of personal injury plaintiff: general. The Brighton resident is listed for the second time.
• David L. Cook, in the practice area of business litigation. Cook, of Pittsford, has been named to New York Super Lawyers in three previous years from 2007 – 2009.
• John A. Falk, in personal injury plaintiff: general. A Brighton resident, Falk is listed for the second time.
• Angelo G. Faraci, in personal injury plaintiff: medical malpractice. Faraci, who resides in Rochester, has been listed in New York Super Lawyers since 2007.
• Paul K. Lange, in personal injury plaintiff: general. First named to New York Super Lawyers in 2007, Lange resides in Rochester.
• Joseph A. Regan, of Rochester, in personal injury plaintiff: medical malpractice. Regan has been named to New York Super Lawyers since 2008.
• Stephen G. Schwarz, of Fairport, in personal injury plaintiff: medical malpractice. He was first named to New York Super Lawyers in 2007.
• Brian M. Zorn, in personal injury plaintiff:  medical malpractice. Zorn, of Victor, has been named to New York Super Lawyers since 2007.

Only five percent of the attorneys in Upstate New York are named to the Super Lawyers list. Super Lawyers selects attorneys using a multi-phase process combining peer nominations and evaluations with third-party research. Candidates are evaluated based on peer recognition and professional achievement. The publication aims to provide a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

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Faraci Lange associate attorney and recipient of the 2011 Up & Coming Attorneys Award from The Daily Record, Hadley L. Matarazzo, poses with (from left) her father Staffan Lundback, Faraci Lange managing partner Stephen G. Schwarz, and her husband Todd Matarazzo.  This year’s event was held at the Hyatt Regency Rochester.

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Town of Aurelius residents’ lawsuit against General Electric Co. for drinking-water-well contamination from its former Powerex facility will move forward, following an Appellate Court decision.

Their case originally was filed in June 2001 alleging negligence due to their well water being contaminated with trichloroethylene (TCE) — associated with kidney, liver and non-Hodgkin’s lymphoma, and other cancers — and vinyl chloride, a cause of liver cancer.

A punitive damages claim was based on documents showing that GE decided against conducting a survey of nearby drinking water wells once the contamination at the Powerex plant was first discovered in the late 1980s, in an attempt to avoid adverse publicity. Residents claimed that this caused them needless exposure for an additional 10 to 12 years and showed reckless disregard for their health and safety.

On July 8, 2011, the New York State Appellate Division, Fourth Department in Rochester affirmed Cayuga County Supreme Court Judge Thomas G. Leone’s earlier ruling denying GE’s motion to dismiss the case. The Appellate Court’s decision means that Baity, et al., v. General Electric Company will proceed as scheduled before Judge Leone in January 2012.

“We are gratified by the Appellate Court’s decision, and the residents are looking forward to finally getting their day in court,” said Stephen G. Schwarz, managing partner at the Rochester law firm of Faraci Lange LLP and the residents’ lead attorney. “It has been a long, hard fight over many years by a group of determined citizens against one of the biggest, most powerful corporations in the world. This ruling paves the way for us to prove that GE owes compensation for the damages caused by the company’s careless and reckless practices.”

GE Powerex Facility

General Electric’s Powerex facility, located in the town of Aurelius, manufactured silicone semi-conductors, radar equipment and printed circuit boards. From 1951 through approximately 1967, GE disposed of millions of gallons of solvent wastes by dumping them into unlined evaporation pits on the property and allowing the liquid chemical waste to seep into the ground. In 1985, GE began to investigate possible contamination under its plant, and within two years it was discovered that high concentrations of various solvents and other chemicals were contaminating the aquifer beneath the plant. The concentration levels were so high that the chemicals were actually still in pure form at the bottom of the aquifer.

Nearly 15 years after the contamination below the Powerex site was first suspected, the drinking water wells in close proximity to the site were finally tested. Testing was conducted as a result of contamination discovered in the village of Union Springs’ public water supply wells near Cayuga Lake — nearly seven miles southwest of the Powerex site. As early as 1988, trace amounts of TCE and dichloroethylene (DCE), a chemical created from TCE degradation, were detected in these wells. Investigations near Union Springs conducted in the late 1980s and early 1990s failed to identify a likely source or sources for these contaminants.

As contamination levels in Union Springs’ wells continued to rise, the state Department of Environmental Conservation initiated a broader investigation in September 2000, at which point 28 private wells northeast of the Union Springs wells tested positive for the same chemicals. Additional testing determined that more private drinking water wells contained dangerous levels of TCE, DCE and vinyl chloride. The string of contaminated wells made a direct line from Union Springs to the Powerex plant, where contamination with the same chemicals was discovered fifteen years earlier. Approximately 800 people were determined to be at risk by the federal government’s Agency for Toxic Substance and Disease Registry.

Appellate Court Ruling

The residents’ case alleges negligence, nuisance and trespass causes of action and requests damages for property devaluation, annoyance and inconvenience and medical monitoring damages for the testing and evaluation necessary to diagnose one of the cancers associated with TCE and vinyl chloride at an early stage enhancing the chances of more effective treatment and survival. After many years of pre-trial discovery, GE made a motion for summary judgment in early 2009 dismissing the negligence and other claims on the grounds that the company was only following industry custom and practice at the time it was dumping the chemicals into the ground and could therefore not be found negligent. In the alternative, GE asked Judge Leone to dismiss the medical monitoring claim, arguing that the residents could not show any sign of illness or that the chemicals were still in their bodies. Experts for both the residents and GE stated in affidavits that when these chemicals are ingested, inhaled or absorbed into the body, they are quickly metabolized and excreted. However, at times they can cause genetic damage which can manifest as cancer years later.

In October 2010 Judge Leone ruled in favor of the residents and denied GE’s motion. He also denied the resident’s motion for a ruling that GE was definitively the cause of the contamination. Both sides appealed.

The Appellate Court’s July 8, 2011 ruling affirmed all of Judge Leone’s rulings, including:

•     GE’s argument that it could not be found negligent because it was following industry practice was rejected, also finding that there was significant evidence GE knew of the dangers of the dumping while it was occurring.

•     The residents set forth a valid claim for medical monitoring damages by showing exposure to toxic chemicals that raised their risk of developing disease in the future and that there were tests and evaluations that could help with early diagnosis and treatment.

•     The residents’ argument for punitive damages based upon GE’s failure to test the drinking water wells in the plant area in the late 1980s should be decided at trial.

•     There was some question as to whether GE was the only contributor to the contamination and this issue must be presented at trial.

Schwarz noted that this case has helped to clarify the legal requirements for a valid claim for medical monitoring damages. “The Appellate Division, Fourth Department was the first to recognize the right of people wrongfully exposed to toxic substances to sue for medical monitoring costs,” Schwarz said. “Courts across the country followed that decision, but other New York courts confused the claim for future medical testing expenses with a claim for emotional distress caused by a fear of cancer. It is fitting that the Fourth Department has clarified the standard and paved the way for people with elevated cancer risks due to the carelessness or recklessness of others to obtain the medical evaluation and testing they need for early diagnosis and treatment.”

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