Arizona toxic tort suits against Motorola, others in offing

Electronic News, June 9, 1997 by Richard Bruner

Phoenix--The biggest series of toxic tort lawsuits ever filed in Arizona will start coming to trial next January against Motorola, Lansdale Semiconductor, and 27 other companies. Two trials will be in a state court in Phoenix. Another trial, the date for which has not been set, will be in federal court in Phoenix.

The plaintiffs in the state court trials will ask for damages in the "billions." The plaintiffs in the federal case will expect less than a billion. These are enormous demands, by any standard. Alan Rudlin, an expert in toxic tort cases for Hunton Williams, a Washington law firm, spoke of these cases in the same breath with the Love Canal case, Times Beach (Missouri) case, and claims against the Lockheed B-One Bomber plant in California. However, he knows of no toxic tort case involving contaminated groundwater in which the award to plaintiffs was more than a billion dollars. Whatever the final outcome, Motorola, charged with more than 50 percent of the responsibility for the contamination of groundwater in areas of Phoenix and Scottsdale, is taking the matter very seriously. According to a Wall Street Journal article, Motorola spent more than $15 million up to 1994 on more than 180 lawyers working on the cases. Current estimates place the total figure at considerably more than double the 1994 calculation. Both the state and federal cases charge Motorola and the other defendants with dumping trichloroethylene (TCE) into "dry wells"--essentially holes in the ground--during the 1960s and 1970s. The chemical then supposedly seeped into the groundwater in parts of Phoenix and Scottsdale. The cities of Phoenix and Scottsdale--who are also defendants--did not purify the ground water before pumping it into the system from which residents obtained their drinking water, according to the plaintiffs' lawyer.

Federal Suit In 1991

The federal lawsuit was the first to be filed, in late 1991. Although the federal suit is not a class action, it involves more than 800 plaintiffs, residents of the areas allegedly contaminated. Since none of them has the financial resources to pay a law firm to represent them in such a case, any firm which accepts them as clients must be prepared to pay for all the pre-trial costs, such as depositions from experts. That proved too expensive for the original group of lawyers. They dropped out and several plaintiffs sought the help of a high-profile Houston lawyer, John O'Quinn, whose reputation was established when he won several breast-implant suits and a $650 million judgment against Tenneco, Inc. John Buttrick of Brown & Bain, a Phoenix firm, said Mr. O'Quinn "has a national reputation as a trial lawyer in contingency cases taking on big corporations. He took the case over and then hired us (Mr. Buttrick's firm, Brown & Bain) to be the local counsel in 1993."

In the state court, the lawsuits were originally filed in February, 1992. Both state and federal lawsuits seek damages for the alleged effect of the contamination on residents' health (and as many as 12 deaths), the effect on property values, and the cost of medical monitoring of people in the area, to assure that cancer will be detected as early as possible. The state court lawsuits are class actions, representing hundreds of plaintiffs. Currently, they are represented by Treon, Strick, Lucia & Aguirre, three other firms, and--most recently--Beus, Gilbert & Morrill, a Phoenix firm that exults in its reputation for taking on cases involving big corporations. Leo Beus, founder of the firm, said he studied the case for three months before deciding to join with the other firms in the suit. He believes there is strong evidence condemning Motorola.

"I love this case, I gotta tell you," Mr. Beus told a local reporter. A personal-injury case "is not often a lucrative proposition, unless you are sure you can win." He's convinced he can win.

Invited To Join

Mr.Beus' firm was invited to join the suit because, according to Tony Lucia of Treon, Strick, Lucia & Aguirre, "We needed more help on the case. On any case like this, the lawyers front the cost. We've put in roughly about $4.5 million to date on the case. That's not including our time. That's just out of pocket."

When asked why so much time elapsed between the alleged dumping of TCE and the filing of the lawsuits (a minimum of 10 years), Mr. Lucia said, "I think people didn't know."

Motorola apparently knew. In one of a series of "Fact Sheets" the company said, "When (we) discovered TCE in the groundwater near our sites in the early 1980s, we immediately notified the proper state and federal authorities and began studying the extent of the TCE and the most efficient methods of cleanup." The Fact Sheet added that "Motorola has spent over $50 million to investigate and remediate the groundwater, including $7 million to help provide a new state-of-the-art water treatment facility for the City of Scottsdale."

One hint of trouble was the decision by Scottsdale and Phoenix to shut down the water systems in the affected areas in the 1980s. But, said Mr. Lucia, "It happened without a great deal of fanfare. Then, I remember there was some publicity about cancer clusters in the area that's the west side part of our claim. Even then, everyone was wondering what did this. Was it just a coincidence? By then, the wells had already been shut down five years. And it wasn't until several years after that that people began to make a connection."