Judge to determine whether AVX paperwork requests are proper

CONWAY | -- A lawyer representing Myrtle Beach property owners in a class-action lawsuit against AVX Corp. says the electronic components manufacturer is trying to harass his clients with a barrage of needless paperwork, but company lawyers say they need all of the information they’ve requested to defend against potentially millions of dollars in property-damage claims.

Gene Connell, the lawyer representing property owners, told Judge Larry Hyman during a court hearing on Monday that AVX – responsible for groundwater contamination in a roughly 12-block neighborhood – wants to overwhelm property owners with questions and requests for documents so they will drop out of the lawsuit.

“They want to make it so difficult that each class member will not want to proceed,” Connell said. “It’s just a tactic to wear these people down and grind them into the ground.”

AVX wants each of the approximately 230 property owners in the lawsuit to answer a set of written questions about their knowledge of contamination on their land, their attempts to sell or get refinancing for their property and their use of the property. AVX also wants those owners to supply copies of their mortgage documents and any property tax challenges, sale documents, redevelopment documents and contamination records they might possess.

AVX lawyer Brad Devore said the company needs specific information about each parcel to counter possible testimony from expert witnesses that would show every property owner has suffered financial losses tied to the contamination.

“We fully expect that the vast majority of people did not attempt to sell their property or were successful in selling their property,” Devore said, adding that such information could eliminate specific property owners from damage claims.

Connell said AVX’s request amounts to 16,698 questions and 3,630 requests for documents from his clients – much of it information that could be obtained through public records. Connell said AVX is hoping that many of the property owners will fail to respond to the questions or document requests so the company can dismiss them from the lawsuit.

“This is nothing but a strategy to reduce the claimants,” Connell said.

Hyman did not rule on the matter but asked both sides to prepare a proposed order within 15 days.

“I may sign one or I may do my own [order],” Hyman said.

The class-action lawsuit, now in its fifth year, isn’t expected to go to trial until January 2013. The trial is expected to last about one month.

The trial date was delayed by one month on Monday after AVX lawyers pointed out deficiencies in how some class-action participants were notified. Connell was supposed to notify those who owned property within the contaminated area as of Nov. 27, 2007 – the date the lawsuit was filed. At least 28 properties have been sold since then, AVX lawyers said, and the class-action notices for those parcels went instead to the new owners.

“He’s failed to notify some members of the class and he’s notified others who are not members of the class,” said AVX lawyer Richard Morton. “They have frankly made a mess out of it.”

Sid Connor, a lawyer who represents property owners, said AVX is “making this an issue that’s bigger than it really is,” and said he and Connell can simply go back and notify the correct property owners.

Hyman gave Connell and Connor 20 days to correct the problem and extended the lawsuit deadlines by 30 days after AVX lawyers said the mistake has cost them time in preparing for a trial.

The property included in the class-action lawsuit stretches from 17th Avenue South to 5th Avenue South. Most of the property is residential, although about 44 commercial lots are included – sites where hotels, restaurants, shopping centers and an urgent care clinic are located.

The contaminated area is based on a map drawn by Charles Fetter, a hydrogeologist for 35 years and the author of textbooks used by graduate programs and universities. Fetter did not conduct his own environmental testing but relied on data from AVX, the S.C. Department of Health and Environmental Control and depositions from project managers working to clean up the pollution.

The lawsuit claims that AVX contaminated groundwater in the neighborhood with a degreaser called trichloroethylene, or TCE, which has been linked to cancer and other health problems. Connell is seeking unspecified damages from AVX to compensate owners for the loss of property values that resulted from the contamination.

AVX earlier this year settled a separate lawsuit with adjacent property owner Horry Land Co., which also claimed its property values had been ruined by the contamination. The terms of that settlement are confidential, but property records show AVX bought the 21.5-acre Horry Land site in May for $4.6 million.

A third contamination lawsuit – filed by a family that wanted to develop a condominium project near the manufacturer – also is pending against AVX. That property, located at Beaver Road and 17th Avenue South, is not included in the class-action lawsuit.

Although TCE is a health hazard, DHEC does not consider the pollution in the 12-block neighborhood to be dangerous because it is not groundwater used for drinking.

AVX – which moved its world headquarters from Myrtle Beach to Greenville in 2009 – has been paying for studies to determine the best way to clean up the pollution and expects to use a process called enhanced reductive chlorination, in which a substance similar to molasses is injected into the groundwater. The molasses-like mixture creates bacteria that eat the TCE, breaking it down into harmless matter.