CONWAY — Electronics manufacturer AVX Corp. wants a judge to reduce or eliminate entirely a jury’s award of $750,000 to the developers of a condominium project that lost its financial backing after pollution from the manufacturer’s Myrtle Beach facility migrated through groundwater to the developer’s land.
An Horry County jury awarded the money earlier this month to JDS Development of Myrtle Beach LLC after determining that AVX was negligent in its handling of trichloroethylene, or TCE, for decades last century. That negligence allowed the chemical to seep into groundwater at the manufacturer’s site and AVX then did nothing to stop the pollution’s spread to neighboring land, including the developer’s, according to the jury’s verdict.
AVX, however, said in a post-trial court filing that JDS Development – comprised of John Nance and his sons, David Nance and Steven Nance – failed to provide any expert testimony showing negligence on the company’s part. The manufacturer said it also should have been allowed to present evidence of Steven Nance’s criminal record to counter the developer’s focus on its “honesty and integrity” during the trial’s closing arguments.
Steven Nance was the partner in charge of marketing the condo project to prospective buyers.
“The [developers] had to make a choice – they could either keep the issue of honesty and integrity out of the case or accept that Steven Nance’s integrity would be placed in balance against that of AVX,” said Kevin Dunlap, the manufacturer’s lawyer, in the court filing.
Sandy Bridges, a lawyer representing the developers, could not be reached for comment Thursday.
Judge Benjamin Culbertson ruled during the nearly two-week trial that Steven Nance’s criminal record – consisting of assault and drug-related convictions in the 1990s and a drug paraphernalia conviction last year – could not be allowed as evidence.
Dunlap said Culbertson should have dismissed the developer’s claims before they went to a jury because JDS Development provided “no evidence that AVX acted intentionally or recklessly” and that the manufacturer’s conduct has to be judged based on the standards in effect at the time the pollution occurred. Dunlap said the company’s use of TCE followed all regulations and standard practices in place during the 1970s and 1980s, when the pollution occurred.
The developers “offered no expert testimony that there was any reckless, wanton or willful behavior on the part of AVX,” Dunlap said, adding that JDS Development also failed to provide any evidence that its condo project would have been successful if there had been no environmental issues. The project, called Southern Pines, was never built.
The jury awarded JDS Development $500,000 in actual damages – including money spent on plans and permitting before the bank loan was canceled and loss of use of the property – and $250,000 in punitive damages designed to punish AVX for its actions. Dunlap wants those awards wiped out or at least reduced to a combined maximum of $397,500. No court date has been scheduled to consider the request and the case remains open while the request is pending.
JDS Development had a construction loan lined up for its condo project on 4.4 acres at the corner of Beaver Road and 17th Avenue South, across from the AVX plant. Beach First bank canceled that loan after the groundwater contamination was publicized by reports in The Sun News. JDS Development sued AVX in early 2008 and a trial concluded earlier this month.
Dunlap argued during the trial that the economic collapse, not pollution, caused the condo’s failure.
Bridges, the developer’s lawyer, told the jury that AVX engaged in a cover-up by hiding the pollution from regulators for more than a decade, allowing it to spread and ending “the hopes and dreams of Mr. Nance and his family.”
AVX admits that it caused the groundwater contamination with TCE, an industrial degreaser commonly used in the 1970s and ’80s that now is suspected of causing cancer and other health problems. The contaminated area includes a narrow swath stretching about 10 blocks north and northeast of the AVX plant on 17th Avenue South.
AVX – which moved its world headquarters from Myrtle Beach to Greenville in 2009 – is paying to clean up the pollution using a process called enhanced reductive dechlorination, in which molasses is injected into the groundwater. The molasses creates bacteria that eat the TCE, breaking it down into harmless matter.
Experts disagree about the amount of time such a cleanup will take. AVX consultants say the TCE can be removed within five years, while others say it can take decades to reduce the pollution to federal standards. The pollution is not considered a health hazard because the groundwater is not a drinking water source.
Contact DAVID WREN at 626-0281.