Judge finds no evidence refineries polluted PA neighborhoods

David Yates Oct. 8, 2008, 7:31am

Judge Gary Sanderson

The Texas Ninth District Court of Appeals dealt a blow to toxic tort attorney Tom Pearson in September 2007, when it removed a host of children from a class action alleging Premcor, Motiva and several other refineries were releasing harmful pollutants into Port Arthur neighborhoods.

Using the appeals court ruling as a basis for summary judgment, Pearson was dealt a knockout punch as Judge Gary Sanderson granted several defendants' no-evidence motions on Oct. 6. The judgments released more than a dozen oil and chemical companies from the class action.

Sanderson of the 60th District Court wrote: "the court has determined that the defendants' no-evidence motion(s) for summary judgment (are) granted … and that all plaintiffs' claims in this matter are dismissed."

Nearly all of the defendants in the class action were dismissed, including Chevron USA, Unocal Pipeline, Equistar Chemicals, Millennium Petrochemicals Duke Energy Field Services

A court employee told the Record that the judge is expecting no-evidence motions from the remaining defendants in the next few days.

The case stems from a personal injury suit filed in October 2004 by Crystal Faulk against Premcor, Motiva, Huntsman Petrochemical Corp. and several individual plant operators. The Port Arthur woman claimed the refineries were releasing more emissions than they were reporting, which were in turn causing her young son's asthma to worsen.

In the past four years, the single complaint has blossomed into a massive class-action suit with plaintiffs that included dozens of children. The plaintiffs were categorized by the Port Arthur neighborhood in which they reside, such as West Side, Marion Anderson, El Vista Roosevelt, Lakeside, Port Acres, East Side and others.

The suit also grew to more than three dozen additional defendants, including the Chevron, Texaco and Mobil oil companies.

The suit, which has been working its way through district court for years without a trial date, was spawned by a lawsuit filed by Texas Attorney General Greg Abbott against Huntsman Petrochemical in 1998.

According to the state's petition, which was posted on the attorney general's Web site, Abbott charged Huntsman with frequent violations of the Texas Clean Air Act.

The company's lawyers contested the attorney general's allegations for nearly five years before finally settling with the state for $9 million, plus $375,000 in attorney's fees in March 2003. Huntsman admitted no guilt, opting to pay the penalty rather than continue endlessly litigating with Abbott.

"The defendant admits no liability and is settling this lawsuit due to the costs, risks and delay of litigation and to buy its peace," the settlement agreement wrote.

Yet Huntsman's high-priced "peace" was short-lived. The judgment attracted the attention of Jefferson County plaintiffs' lawyers, and a little over a year after entering into the $9 million agreement the company was back in court.

Faulk and her lawyers, Thomas J. Pearson and Cimron Campbell, drew heavily upon Abbott's findings, crafting a civil suit that mirrored the past allegations against Huntsman.

"In addition to the heroic attempt by the attorney general to control the operation of Huntsman Petrochemical, the federal government, acting through the office of the U.S. Attorney for the Eastern District of Texas, has also attempted to force (the company) to abide by the law and cease abusing the environment surrounding the Huntsman facility on Highway 73," the plaintiff's original petition stated.

The original suit dedicates 40 pages to the allegedly wrongful conduct of Huntsman Petrochemical and only two pages to the other six defendants.

However, by the time the mounting suit reached its pinnacle, the plaintiffs' seventh amended petition named 41 defendants, blanketing Golden Triangle oil refineries with the charge of purposely poisoning their neighbors while fraudulently concealing emissions.

"The cause of action in question arises from the unauthorized, un-permitted, and negligent releases of noxious fumes, vapors, odors and hazardous substances by the named defendants, compounded by fraudulent representations to regulators and to the public concerning such releases," the seventh-amended petition stated.

"These toxic substances have unlawfully intruded and trespassed onto the residential properties occupied by the plaintiffs."

On Aug. 31, 2007, justices on the Ninth Court of Appeals granted a Writ of Mandamus request by Premcor and Motiva to have children removed as plaintiffs from the class action

The justices' opinion stated, "We conclude that Premcor has demonstrated both clear abuse of discretion by the trial court in denying the motion to dismiss for lack of standing, and the lack of an adequate remedy at law.

"Accordingly, we conditionally grant Premcor's petition for writ of mandamus and direct the trial court to vacate the April 26, 2007, order denying Premcor Refining Group Inc.'s, and Motiva Enterprises, LLC's joint motion to dismiss for lack of standing."

The defendants' motion for summary judgment cited the appeals opinion as reason for a no evidence ruling.

"The … appeals court concluded that the minor plaintiffs' nuisance claims should be dismissed," the motion states. "In line with its previous opinion, it noted there was no evidence that the minor plaintiffs owned a piece of affected property … … or caused any of the plaintiffs' alleged personal injuries."

The defendants' motions also stated that plaintiffs failed to provide any evidence of negligence, fraud or assault.

The refineries employ thousands of local residents and contribute millions of dollars to the Jefferson County tax rolls.

Case No. B173-357

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