CONWAY — A potential problem with the jury pool could delay the start of a trial here to determine whether AVX Corp. is financially liable for trichloroethylene-polluted groundwater that JDS Development of Myrtle Beach Inc. claims ruined plans for a condominium project near the manufacturer’s facility along 17th Avenue South in Myrtle Beach.
Twenty potential jurors – just one-third of those summoned – showed up Monday for what was supposed to be the first day of jury selection for the trial. Judge Benjamin Culbertson said there were not enough potential jurors present to go ahead with jury selection, and he asked those in attendance to return to court on Tuesday after sheriff’s deputies had time to round up the no-shows.
There’s no guarantee an extra day will provide a panel large enough to select the 12 jurors and two alternates needed to proceed.
Culbertson said he told the Horry County Clerk of Court’s office that he wanted a panel of at least 60 people from which lawyers could select a jury.
“They need to summon about 200” to find at least 60 qualified candidates, Culbertson said.
The clerk’s office mistakenly sent just 60 jury duty notices. Of the 60 people that were summoned, 20 had already been excused before Monday’s court date for statutory exemptions, such as having young children to care for or for being age 65 or older.
Depending on how many no-shows sheriff’s deputies can locate over a 24-hour period, there could be as many as 40 prospective jurors in court on Tuesday. Many of them could be excused for a number of reasons once they are questioned; for example, having worked at AVX or having had a close relative work for the manufacturer. AVX in the 1990s was one of the Myrtle Beach area’s largest private employers.
“It looks like there will be 40 in the panel,” Culbertson said. “If we get enough, we get enough.”
If there aren’t enough jurors, the case – now in its fifth year – would have to be rescheduled.
After dismissing the potential jurors on Monday, Culbertson took up a number of pre-trial motions AVX lawyers Kevin Dunlap and Steve Weber filed last week, mostly asking that certain evidence and testimony be excluded from the trial.
Culbertson agreed to bar the specific mention of a consent order the manufacturer entered into with state health regulators in 1996, but said disclosure of the facts spelled out in that consent order would be taken on a case-by-case basis as the trial proceeds. Culbertson also excluded any findings a federal judge issued in a similar case against AVX last year because that matter is under appeal.
Culbertson denied a series of AVX motions seeking to block testimony from people the manufacturer claims are not qualified to serve as experts. The judge – stating that he has no evidence yet to determine their qualifications – said he would hear objections to those witnesses as the trial proceeds.
Culbertson also denied an AVX motion seeking to exclude all evidence of the manufacturer’s actions between 1981 and 1995, when it secretly tried to clean up pollution on its site without informing local officials or state regulators about the problem.
Culbertson took under advisement an AVX motion that would prohibit the developers’ lawyers from discussing the negative health effects of trichloroethylene, or TCE, which is a degreaser commonly used by manufacturers in the 1970s and 1980s. The S.C. Department of Health and Environmental Control says the TCE located near AVX is not a health hazard because groundwater there is not a drinking water source.
Jack Thomas, a lawyer for the developers, said discussing the negative impacts of TCE, which can cause cancer and other health problems, is important to show jurors why the pollution has been so detrimental to his client’s property values.
“We don’t want them to think it’s lemonade in the groundwater that needs to be cleaned up,” Thomas said. “It’s a carcinogen.”
Dunlap said the developers’ lawyers “are just trying to scare the jury” by bringing up health hazards that aren’t relevant to the property in question.
Dunlap also told Culbertson that he would like to take jurors to visit the site at the corner of Beaver Road and 17th Avenue South where JDS Development wanted to build its condos. He then wants to take jurors to the Market Common retail and housing project located on the former Myrtle Beach Air Force Base, which is located adjacent to AVX. Market Common is built on property where the groundwater is polluted with trichloroethylene and other chemicals, and Dunlap said such a visit would show jurors that development can take place on contaminated land.
Culbertson did not rule on whether such a field trip will be allowed.
AVX last year settled a similar pollution lawsuit filed by Horry Land Co. – which owned property across the street from the manufacturer – just as a federal jury trial in Florence was entering its fourth day. AVX agreed to purchase Horry Land’s 21.5–acre parcel after testimony and trial documents showed the company knew about the pollution since at least 1981 but did not try to stop its migration and did not inform adjoining land owners, city, state or federal officials about the problem.
Horry Land discovered the groundwater contamination in July 2006, when environmental tests performed in advance of planned development showed TCE levels of up to 18,200 parts per billion in the groundwater. The maximum amount allowed by the U.S. Environmental Protection Agency is five parts per billion.
Even though the groundwater is not a drinking water source, it must be cleaned to that EPA standard.
David and Steve Nance, partners in JDS Development of Myrtle Beach Inc., say they had all the permits and financing in place by September 2007 to start construction of their Southern Pines condo project but their bank withdrew a construction loan once the groundwater contamination was made public.
The Nances, who filed their lawsuit in January 2008, want AVX to pay unspecified damages for the loss of value on the 4.4-acre parcel and for the loss of income that would have been generated by condo sales. The Nances were marketing the condos at prices starting at $180,000.
In addition to stating that development could have proceeded on the contaminated property, AVX lawyers say there has been no permanent damage to the Nances’ property because the groundwater pollution can be cleaned up within a five-year period.
Contact DAVID WREN at 626-0281.