By Howard Greninger and Deb Kelly
The Tribune-Star
TERRE HAUTE
November 10, 2008 11:15 pm
—
A Vigo County woman has filed a lawsuit seeking damages from Pfizer Inc. after June floodwaters breached a levee at a containment pond on the company’s property, sending polychlorinated biphenyls, or PCBs, onto her property.
Dorothy McLaughlin, 79, claims the waters from the breached levee severely damaged her home at 7169 Hultz Road along Jordan Creek, west of the southernmost section of Richland Manor subdivision in Honey Creek Township.
The lawsuit was filed Friday in Vigo County Superior Court
Division 1.
Pfizer spokesman Rick Chambers said Monday the company does not comment on pending litigation. Pfizer has 20 days to answer the complaint and can receive an automatic 30-day extension to respond to the lawsuit.
Pfizer in June responded after the levee was breached during the worse flooding in 95 years in Vigo County, Chambers said.
“Our feeling from the very beginning was to take responsibility for identifying the scope of the situation and commencing cleanup in partnership with regulatory agencies. We continue to do that with all the speed possible,” Chambers said.
The flood caused about 300 million gallons of floodwater from a 900-acre watershed to pour into a three-acre containment pond, which had contained about 1 million gallons of water. The flloodwaters caused a breach in a small levee, pushing PCBs down Jordan Creek.
PCBs are a group of synthetic chemicals that were widely used in industrial applications before federal law banned U.S. production of PCBs as of July 1979. The chemicals are suspected of having a variety of potential harmful effects on human health and the environment.
The lawsuit seeks the ability to bring environmental legal action against Pfizer; claims Pfizer was negligent in maintaining its dam; claims trespass by allowing PCBs to come onto McLaughlin’s property, claims Pfizer’s dam was dilapidated; claims McLaughlin has suffered discomfort and annoyance by Pfizer’s actions; seeks temporary housing as she has been living with her son for more than five months; claims Pfizer is strictly liable for damages; and claims stigma damages that even after remediation, the property’s value will be less as potential buyers will perceive risk of harm.
McLaughlin’s attorney is Tonya Bond of the Indianapolis law firm Plews Shadley Racher & Braun.
Bond said that while Pfizer has agreed to clean up PCB-laced soil, “we don’t know to what degree. If we chose to clean it up differently or in a way that better suits somebody living on the property, then we can recover those damages” through environmental legal action.
“Pfizer’s PCBs are on [McLaughlin’s] property and we don’t want them on the property, which in and of itself is a trespass under environmental laws,” Bond said. “We say damage was caused by their negligently maintaining their dam.”
Bond said reports by experts are to be done to back up their claim about the dam, she said.
Bond said until the McLaughlin property is fully remediated, she will not know the future value of the property.
Lyold T. Wilson Jr., professor of law at Indiana University School of Law in Indianapolis, is an expert in the area of land use.
Wilson said McLaughlin is alleging several potentially relevant theories, but the most likely to prevail will be determined as the evidence develops.
McLaughlin will have to show intent on the part of Pfizer to prove the trespass claim, Wilson said.
Although trespass is understood typically to be the unauthorized entry of one person onto the property of another without consent, “that extends from just people trespassing,” Wilson said. “If I cause something to go from my property to yours, that can be a trespass.”
But to prevail in the trespass claim, McLaughlin will have to prove that Pfizer intentionally caused PCBs to go on her land.
“What they’re saying here is that Pfizer intentionally – and that’s going to be the tough part – intentionally caused this water to go over to their land,” he said.
As for the negligence claim, Wilson said, “The question is, if you have a retention pond full of PCB-contaminated waters, what would a reasonable person be charged by society to do to take care of it? And one of the things that a reasonable landowner would do would be to keep the dam in good repair so it doesn’t leak. So if they failed to keep it in good repair, that could be negligence.”
Wilson added that there are probably environmental regulations in place at the federal and state level that would govern Pfizer’s use of its property, and “would impose a duty to contain” hazardous materials.
“My guess is that the defense will be that this was a once-in-a-lifetime flood, that [Pfizer] had a reasonable duty to take reasonable steps to provide reasonable care, that [Pfizer] didn’t have a duty to protect against a once-in-a-lifetime scenario,” Wilson said.
Howard Greninger can be reached at (812) 231-4204 or howard.greninger@tribstar.com. Deb Kelly can be reached at (812) 231-4254 or deb.kelly@tribstar.com.
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