the products without knowing the risk
of groundwater contamination.
Thus far, Shell and Dow have paid
to settle eight lawsuits regarding TCP
contamination and one jury awarded $22
million in damages to the City of Clovis
against Shell. Another jury in Redlands
returned a defense verdict (a verdict of no
liability) to Shell, meaning the plaintiff, the
City of Redlands, did not prove its case.
The vast majority of TCP cases, however,
are waiting their turn in court or litigators
are weighing the options of a settlement.
Where We Are Now
Shortly after the first cases were filed
in 2005, TCP litigation was consolidated in
a Judicial Council Coordinated Proceeding
in San Bernardino County Superior Court
(the first case filed in the coordinated pro-ceeding
was in San Bernardino Superior
Court). Mass cases involving a common is-sue
in California are often consolidated in a
coordinated proceeding so that pretrial dis-covery
(the process to uncover evidence),
38 SOURCE fall 2017
case management, and procedural motions
are in front of one judge. This promotes
convenience, helps ensure uniformity of
outcomes, and conserves judicial resources.
Nonetheless, until recently, TCP cases have
moved slowly, progressing sequentially in
the order in which they were filed. The slow
pace was in part a function of the defen-dants’
argument that the cases were prema-ture
because California had not established
an MCL. Recently geographic grouping of
cases has enabled them to move through
the discovery process together.
Procedures
The litigation process is initiated when
a law firm and water provider enter into a
legal services agreement. Typically these
TCP cases have been handled on a contin-gency
basis wherein the community incurs
no upfront costs. If the case is successful,
the client reimburses the law firm’s costs
and pays it a percentage of the settlement.
Communities do not have to take on any
financial risk while exploring and pursuing
cost-recovery options.
It should be noted that it benefits
water providers to maintain good
relations with local community members,
especially farmers, who can provide
information helpful to the litigation.
Local farmers whose fields are closest
to contaminated wells often provide
invaluable information about the use of
TCP-containing fumigants.
The parties in at least six pending
cases scheduled mediation in September
and October 2017 with the goal to reach an
agreed-upon monetary settlement of the
claims and avoid a costly and uncertain trial.
Adoption of the MCL may prompt speedier
resolution since Shell and Dow previously
argued it was impossible to assess what lev-el
of TCP would constitute damages.
Although litigation can be time-con-suming,
with resolution (and dollars)
coming years after filing suit, communities
should not be reluctant to sue the parties re-sponsible
for TCP contamination. Many of
the communities with TCP in their drink-ing
water are disadvantaged and cannot
afford costs associated with compliance,
MANAGER’S CORNER
