Exxon's defense lawyer opens with apology to Jacksonville/Phoenix

Daily Record, The (Baltimore), Oct 16, 2008 by Danny Jacobs

The lawyer for ExxonMobil Corp. began his defense Wednesday in a billion-dollar lawsuit stemming from a 2006 leak with an apology to hundreds of Jacksonville/Phoenix residents whose water supply was contaminated by the 25,000-gallon spill.

"We are sorry for the leak. We are sorry the leak went on for over 30 days. We are sorry for the magnitude of the leak," James F. Sanders said, seemingly addressing both jurors and dozens of plaintiffs in Baltimore County Circuit Court. "We accept ultimate responsibility for what went wrong here."

But Sanders, a Nashville lawyer leading the defense, said the company should only be required to pay compensatory damages to residents actually harmed by the gas leak.

"The plaintiffs want more money than makes them whole to make them right," he said.

Sanders argued during his two-and-a-half-hour opening statement that punitive damages should not be awarded because the spill was caused by a drilling accident that went undetected for five weeks because of the faulty calibration of an otherwise-reliable line leak detector.

The detector is designed to raise an alarm in a gas leak of more than three gallons per hour. It sounded the alarm 10 times when the drilling accident occurred, but contract technicians sent to the scene did not discover the leak; they improperly reset the detector, unbeknownst to Exxon until a month later, Sanders said.

"The only way it gets complicated is when you try to turn an accident into something it's not," Sanders said.

Sanders also challenged claims made by the plaintiffs' lead attorney, Stephen L. Snyder, that Exxon chose profit over public safety by not replacing a detector that it knew was "unreliable" and a "lemon," terms Snyder used throughout his opening argument.

"Put on one single witness that says this won't detect leaks," Sanders said, his Southern drawl rising. "It won't happen."

The detector claims were a "smokescreen," Sanders continued, part of a larger "conspiracy theory."

"This is where we draw the line," Sanders said. "What he's saying is we are some sort of evil, sinister people who don't care about our neighbors, don't care out about our employees, don't care about the environment. Not only is his theory false, each step along the way is false."

Cleanup continues

Sanders said Exxon's cleanup efforts began immediately once it learned of the gas leak on Feb. 17, 2006, after the gas station's owner noticed a large discrepancy in her daily invoice. The company dug monitoring wells to find the liquid gasoline underground, and by Aug. 1, 2006, had removed all liquid gasoline save for what was below the gas station, he said.

Contaminants left behind by the gasoline continue to be flushed out of the ground to this day, Sanders said. One of them, the gasoline additive MTBE, was found at only two homes above the 20 parts per billion considered unsafe for drinking according to state standards, he said.

None of the plaintiffs interviewed by defense lawyers noticed the water tasted different between the end of 2005 and February 2006, he said.

"Just because you're close to or near MTBE doesn't mean you're exposed," he said. "Just because you're exposed doesn't mean you're going to have health problems."

Sanders said Exxon was not patting itself on the back for its cleanup efforts, noting it was required to take them and is monitored by the Maryland Department of the Environment. But he also noted the company is under a consent decree to continue its work until it is completed.

"The suggestion is Exxon is waiting to cut and run, and when they do, all hell will break loose," Sanders said. "Exxon is not going to leave unless or until [state officials] say it's clean.

"We get it," he added. "This is unacceptable. This is inexcusable. It must not happen again."

'Remember Phoenix'

The second day of the trial began with Snyder, of Snyder Weltchek & Snyder in Pikesville, concluding his opening statement with an animated presentation of "Exxon's Library of Fiction" to detail its actions following the gas leak.

The "books" alleged that signs Exxon posted at the gas station misrepresented the danger of the spill to the community and the company overstated the effectiveness of its cleanup efforts, among other charges.

Snyder closed by showing a portion of a February 2007 e-mail between Exxon employees saying "no one will remember Phoenix" in reference to the spill, a phrase that drew gasps from residents in attendance.

"I hope you remember Phoenix," Snyder quietly told the jurors.

The plaintiffs' first witnesses will be called Thursday.