(CN) – Florida man calls on a panel of three 11th Circuit judges to restart his case claiming his late wife’s kidney cancer was caused by industrial runoff from a nearby Pratt & Whitney aerospace plant from their marital home in a rural South Florida community.
More than a decade after the litigation began, Marcos Pinares referred his case to the Miami Division of the Federal Court of Appeal. He is fighting to keep his lawsuit alive against alleged Pratty & Whitney contamination of the community of Acreage in Palm Beach County.
The Acreage was the site of a high profile pediatric brain cancer group that was confirmed by the Florida Department of Health in 2009. After the group was identified, a series of toxic tort lawsuits were filed before South Florida courts alleging that pollution caused by Pratt & Whitney the plant had migrated into well water from nearby Acreage homes.
Solvents, heavy metals, fuel by-products, polychlorinated biphenyls and various other compounds were among the contaminants cited as being able to contribute to the high incidence of pediatric cancer. There were also theories put forward that soil contaminated with radioactive material from company operations made its way onto residential land.
Pinares and his wife Magaly filed their complaint in 2009 against Pratt & Whitney, which is now a subsidiary of Raytheon Technologies. Magaly died while the litigation was ongoing.
In 2019, U.S. District Judge Kenneth Marra granted a motion to exclude key testimony from Pinares’ expert witnesses, Lawrence Wylie. He found that Wylie’s report on the chemicals involved was deficient and did not show how they could cause cancer at the levels found on the Pinares property.
The judge granted summary judgment to Pratt & Whitney after excluding the testimony of Wylie and other experts.
On appeal, Pinares’ attorney, Jeffrey Haberman, attempted to convince the panel that Wylie had performed a comprehensive review of Magaly’s exposure to chemicals found in his well water: chloroform, bromodichloromethane, and methylene chloride.
Her 11th Circuit brief suggests that Magaly was exposed to several dangerous chemicals from the plant, including polychlorinated dibenzo-p-dioxins, which are highly carcinogenic.
“Dr. Wylie did what was required by law. And [the case] should go to a jury, ”Haberman told the panel Friday.
US circuit judge Robert Luck, appointed by Donald Trump, asked if the expert had done ground-level work to establish which levels of chloroform and bromodichloromethane are dangerous. He said it was not enough to simply establish that there were high levels of these chemicals in his well.
“What is the standard to use? What is the appropriate standard to compare it with? Chance asked.
As stated in Marra’s order to the lower court, the level of chloroform and bromodichloromethane found in the Pinares well was well below the safe thresholds set by the federal government. It was, however, more than three times the background level.
Responding to Luck’s series of questions, Haberman suggested that there were many different toxic compounds found in the groundwater around the Acreage, and that exposure to all of these substances – even at slightly increased levels. – caused Magaly’s kidney cancer.
“[They] have to be considered as a whole because it’s the poisonous soup she’s been exposed to day in and day out, ”Haberman said.
Raytheon’s attorney, Daniel McElroy, argued that the trihalomethanes in the Pinares’ drinking water had been found at “trace amounts”.
US circuit judge Robin Rosenbaum, appointed by Barack Obama, emphasized the wide range of contaminants she says have been found around the Acreage.
“We have several chemicals that have been associated with the development [and] promoting cancer that are present in water. Why is this not enough? Rosenbaum asked.
McElroy in turn argued that the Pinares family only presented results for three chemicals in their litigation. Test results do not include levels of dioxin – the notorious carcinogen – at the family’s home, he said.
At the end of the hearing, Circuit Judge Beverly Martin, appointed by Barack Obama, urged the parties to enter mediation. She said both sides of the case have loopholes in their legal arguments.
“Either of you could have a lot to lose,” she said.