Federal judges question validity of AVX appeal in Myrtle Beach contamination case

dwren@thesunnews.comOctober 25, 2012 

— A panel of federal appeals court judges indicated this week they have no intention of overturning a lower court’s ruling and granting electronics components manufacturer AVX Corp. a new trial in a groundwater contamination case here.

AVX claims U.S. District Court Judge Terry Wooten made a legal error in a trial last year in Florence when he allowed Dennis O’Connell to testify as an expert witness about trichloroethylene, or TCE, contamination in groundwater at and near the company’s 17th Avenue South facility.

Kevin Dunlap, a Spartanburg lawyer representing AVX, told the appeals court this week that O’Connell – who was a witness for the U.S. government – is a sediments expert and doesn’t have enough experience with TCE and groundwater to qualify as an expert in this case.

Dunlap asked the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., to order a new trial in the case where AVX was determined to be 100 percent responsible for the contamination and cleanup costs on property across the street from its facility. AVX had claimed that the U.S. military contributed to the pollution and Wooten relied on O’Connell’s testimony in making his ruling against the manufacturer.

The three-judge appeals court panel questioned the validity of Dunlap’s argument.

“What you’re trying to do is to get us to retry your case,” Judge Harvie Wilkinson III told Dunlap. Wilkinson said ordering a new trial would amount to the appeals court “overtaking the district court’s role as a gatekeeper.”

O’Connell testified last year that he had some experience in contamination cases where TCE was detected, but it was not the primary contaminant. Dunlap told the appeals court that TCE has such unique qualities, especially in the coastal geology, that it would be impossible for someone who doesn’t have significant experience in its cleanup to qualify as an expert.

“He did have experience with TCE, it just was not the primary contaminant,” Judge Barbara Keenan told Dunlap. “Aren’t you really splitting hairs?”

“You had an expert who had some experience with TCE, just not perhaps as much as you would like – isn’t that the real issue?” Judge Albert Diaz added.

Wilkinson told Dunlap that he was “selling Dr. O’Connell a bit short here,” adding that he was “kind of impressed” with O’Connell’s background and experience. “This isn’t just somebody who was just dragged off the street.”

Lane McFadden, a lawyer representing the United States, told the appeals court that O’Connell was cross-examined by AVX lawyers before he was qualified as an expert and Wooten “found him to be qualified” despite the manufacturer’s objections at last year’s trial.

“There’s simply no case to be made for abuse of discretion [by Wooten],” McFadden told the judges.

The appeals court judges interrupted McFadden shortly after he started his comments, saying they understood his position and had no questions about his contention that O’Connell was a qualified expert.

The appeals court will issue its ruling on the matter in the coming weeks. If AVX loses its appeal, the manufacturer could ask the U.S. Supreme Court to hear the case, but there is no guarantee that court would take up the issue.

The appeal centers on a lawsuit to determine whether the federal government should share in the cost of cleaning up TCE that has migrated through groundwater over the years from the AVX site to property once owned by Horry Land Co. TCE is an industrial degreaser commonly used in the 1960s and 1970s that has since been determined to cause health problems, including cancer.

Wooten said in his ruling last year that there is no evidence the former Myrtle Beach Air Force Base – which was located adjacent to AVX – contributed to the groundwater contamination. Wooten ordered AVX to pay the entire projected $5 million cleanup cost for the Horry Land property.

AVX reached a settlement agreement in another legal dispute with Horry Land, which owned the contaminated property across the street from the manufacturer. The terms of that settlement were not disclosed, but property records show AVX bought the Horry Land property last year for $4.5 million.

O’Connell – an Athens, Ga., geologist – testified that groundwater from the former military sites flows in an opposite direction from groundwater at AVX, which flows toward the Horry Land property. O’Connell’s testimony also matches the opinion of Carol Minsk, a geologist with the S.C. Department of Health and Environmental Control, who has stated that all of the contamination on Horry Land’s property came from AVX. Minsk has been the state regulator in charge of environmental cleanup at AVX since 2005.

Environmental tests have shown TCE levels as high as 1.6 million parts per billion in groundwater at the AVX site and 18,200 parts per billion in the groundwater of a roughly 10-block neighborhood to the north of the manufacturer’s location. The U.S. Environmental Protection Agency has set a maximum safe limit of five parts per billion for drinking water. Although the groundwater in Myrtle Beach is not used for drinking water, it must be cleaned to that standard to meet state and federal regulations.

AVX – which moved its world headquarters from Myrtle Beach to Greenville in 2009 – will clean up the groundwater by 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.

AVX also is facing pollution lawsuits filed by other property owners near its Myrtle Beach facility – one by a developer which says its condominium project was halted because of the contamination and the other a class-action case on behalf of property owners who say their land values have been ruined by TCE in the groundwater. Both of those cases are pending in state court.

Contact DAVID WREN at 626-0281.

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