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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Previously employed as an associate at the New York City law firm of Weitz & Luxenberg, Matarazzo focuses her practice on toxic torts, environmental law, medical malpractice and products liability.

Matarazzo earned her law degree from the Rutgers University School of Law Newark and her bachelor’s degree from the University of Vermont. She resides in the city of Rochester, N.Y.

The award is given to attorneys who are active in the community, demonstrate a commitment to the community through activities or pro bono work, and who demonstrate leadership and above-average achievements in day-to-day legal assignments. 

Jordan focuses her practice on medical malpractice, complex tort and toxic tort, premises liability, products liability and automotive negligence cases. She is a resident of Farmington, N.Y.

The plaintiff was called in to work on the sprinkler system in the basement of the facility and had been told at a prior visit by representatives of defendant Amrex that he did not require any respiratory protection such as a respirator. Workers on the floor above were apparently cleaning out 55 gallon drums that had been used for chemical storage and the residue of the chemicals leaked through the floor into the area where the plaintiff was working. As the liquid leaked into the basement two incompatible chemicals, a strong acid and sodium hypochlorite, mixed together creating a cloud of chlorine gas that the plaintiff inhaled.

The plaintiff immediately experienced shortness of breath, coughing and gagging and made his way up to the floor above where he observed a puddle of liquid on the floor above where he had been working. One of the workers remarked to him at that point not to stand in the puddle because “it will eat your boots off.” He was not offered any assistance by the Amrex representative who did nothing but document the incident.  He immediately drove himself to the doctor where burns were noted on his chest where the chemical mixture had splattered, and he was also diagnosed with damage to his throat and airways from inhalation of the gas. Over the next few months his breathing difficulties worsened to the point that he could no longer perform his usual work which required heavy exertion. At that point he started a residential plumbing and heating business where he could work at his own pace for less hours and do lighter-duty plumbing.

Testifying on behalf of the plaintiff were his treating pulmonologist, Dr. Richard Baron, an expert in industrial and pulmonary medicine, Dr. Mark Utell from the University of Rochester Medical Center, as well as a toxicologist, Dr. William Sawyer and an environmental chemist, Dr. John Hassett of the S.U.N.Y. College of Environmental Sciences and Forestry in Syracuse. Both Dr. Baron and Dr. Utell testified that the plaintiff’s breathing had steadily deteriorated over the past four years to the point it was only 30% of normal. They both viewed his prognosis as guarded and that any further deterioration would likely make him short of breath even at rest. Dr. Sawyer testified about the known dangers of chlorine gas and the medical literature reports of injuries occurring from chlorine gas inhalation similar to the one the plaintiff suffered. Dr. Hassett calculated the amounts of acid and sodium hypochlorite required to produce toxic levels of chlorine gas. His calculations revealed that even a teaspoon of each when mixed together was sufficient to create dangerous levels of chlorine, especially in an unventilated environment like the basement where the plaintiff was exposed.

The jury awarded the plaintiff $140,000 for past pain and suffering and loss of enjoyment of life and $1,000,000 for future pain and suffering and loss of enjoyment of life. They also awarded him $11,150 in past medical expenses and $100,000 in future medical expenses. Finally, the jury awarded $1,260,000 in future lost wages over the next 21 years.

In the past, one of the most difficult aspects of bringing a lawsuit based on toxic chemical exposure has been proving a causal link between the exposure and cancer. Defendants in these cases often file countless motions challenging plaintiffs’ proof on the causation issue. With some regularity, defendants have succeeded in preventing certain cases from being decided by a jury. It has only been in cases involving rare malignancies, like mesothelioma, that establishing the necessary causal connection has been relatively straight-forward. That is because it has been proven that mesothelioma is caused only by exposure to asbestos.

When exposure a toxin causes a mutation that leads to a malignant change in a cell, and when that change eventually progresses to a tumor, there is no “eyewitness” to the event. In many instances, there are a number of possibilities besides the toxic exposure that defendants can claim caused or contributed to the mutation. One such possibility which often is difficult to discount is the possibility that a congenital defect, suggested by a family history of cancer, was a causative factor.

Unique mutations tied to specific exposures

With the mapping of the human genome, there is promising new research to help establish the causal connection between exposure to a toxin and the development of a particular malignancy. For instance, as a result of numerous epidemiological studies, kidney cancer has long been suspected to be caused by the common solvent and groundwater pollutant trichloroethylene (TCE).

In one study, German researchers examined a cohort of workers with heavy occupational TCE exposures who later developed kidney cancer. The researchers found a specific and unique gene mutation in the vast majority of the workers who developed kidney cancer. As further research occurs, more specific mutations matched to particular types of cancer and toxic chemical exposures are likely to surface. Worldwide databases are being developed to help accumulate this evidence. The effort is growing exponentially because of the free-sharing paradigm followed for the human genome project.

Ruling out inherited cancers

In addition, genetic analysis of cancer cells can provide other important clues which will be helpful in establishing causation. For instance, by comparing the genetic code of a cancerous tumor cell with the code of a non-cancerous cell, the possibility of a congenital defect can definitively be ruled out. Since all cells derive from the initial combination of the egg and sperm, all DNA strands in all cells should contain the exact same genetic code. Thus, a congenital gene mutation will be found in the DNA of both cancerous and non-cancerous cells from the same person. When the mutation only appears in the cancerous cell, it definitively rules out congenital mutations and suggests that some toxic chemical exposure likely played a role.

Moreover, the frequency of mutations in cancer cells also helps point to toxic exposure as a cause of a malignancy. The genes of populations exposed to known and suspected carcinogens tend to contain multiple defects analogous to what one expert has termed “carpet bombing” of the DNA strand. When this is found, it strongly suggests that the patient was exposed to a strong mutagen.

As research continues, the mystery and the difficulty of proving the causal link between a known toxic chemical exposure to a mutagen and the development of particular types of cancer should steadily dissolve. This will benefit the thousands if not millions of cancer victims who now cannot establish the requisite causal link to a toxic chemcial exposure and therefore are deprived of any compensation.

Written by: Stephen G. Schwarz, Managing Partner, Faraci Lange, LLP