Elk River Chemical Spill Class Action Proceeds(1)

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By Steven M. Sellers

Sept. 27 — Eastman Chemical Co. must face a jury over its class action liability for a 2014 toxic chemical spill that fouled the Elk River and tainted the drinking water of Charleston, W. Va. ( Good v. Am. Water Works Co., Inc. , S.D. W.Va., No. 14-cv-01374, 9/26/16 ).

Evidence exists that Freedom Industries, Inc. purchased and stored an Eastman chemical product, methylcyclohexanethanol (MCHM), but wasn’t aware of the chemical’s corrosive properties.

That was enough to defeat a summary judgment for Eastman, the the Southern District of West Virginia said Sept. 26.

The ruling also rejected Eastman’s assertions that named plaintiff Crystal Good’s state tort claims were preempted by federal law.

The court also disagreed that Eastman was shielded from liability because Freedom, as a “sophisticated user” of the chemical, and not Eastman itself, had the duty to warn others of the chemical’s dangers.

Freedom used MCHM to manufacture “Shurflot 944,” a coal-cleaning solution, at a site upstream from Charleston’s municipal water intake, according to the decision. One of the company’s storage tanks containing the finished product allegedly leaked the chemical into the Elk River.

The plaintiffs are Charleston residents who claim business losses, exposure to toxic fumes and interruption of drinking water supplies.

They assert that both Eastman and the water company defendants could have prevented the spill by taking better precautionary measures and complying with applicable regulations ( 30 TXLR 995, 10/15/15 ).

But Eastman argues it shouldn’t be held responsible for state law negligence claims because the spill wasn’t of its product, but of Freedom’s coal-cleaning solution. It also asserts that the material safety data sheet (MSDS) it provided for MCHM meets federal regulatory standards, preempting the state law claims.

Evidence on that and related questions, however, is in dispute and should go to a jury, the U.S. District Court for the Southern District of West Virginia said.

Eastman’s data sheet doesn’t clearly disclose the corrosive qualities of MCHM, and other constituent chemicals in the product aren’t clearly defined, the court said.

Freedom, which filed for bankruptcy protection shortly after the spill, is no longer a defendant in the litigation.

The law offices of Thompson Barney and the Caldwell Practice represented the plaintiffs.

Nelson Mullins Riley & Scarborough, as well as Blank Rome represented Eastman Chemical Co.

To contact the reporter on this story: Steven M. Sellers at sSellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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