Pre-trial motions continue in PFAS suit

Wednesday, May 10, 2023–7:41 a.m.

-John Bailey, Rome News-Tribune-

Rome’s water treatment plant

The first few days of pre-trial motion hearings concerning a water pollution lawsuit filed by the City of Rome centered around challenges to proposed expert witness testimony and a new request to move the trial to another location.

The lawsuit filed in 2019 contends that Rome has spent millions of dollars to clean up toxic perfluoroalkyl and polyfluoroalkyl substances, known as PFAS and PFOAS, released by upstream chemical companies, carpet manufacturers, and Dalton Utilities into its drinking water supply.

On Monday, an attorney for one of the defendants, Daikin America, argued that prospective jurors who have a financial interest in the case — in this argument, City of Rome water customers — should be disqualified from serving on the jury.

The argument by attorney Caryl Lynn Pruitt essentially stated that people who are water customers stand to benefit by a ruling for the city and should be disqualified. Continuing that argument, Pruitt stated that significant media coverage of the issue has fouled the jury pool in Floyd County.

“Is there any evidence that people have consumed all this media,” Floyd County Superior Court Judge Bryan Johnson asked.

“There’s not evidence on the media, but there’s common sense evidence,” Pruitt said. “The (water) rates have already gone up, (the customers) already know.”

The existence of the toxic “forever chemicals” also led the Rome City Commission to approve a cumulative 9% water rate hike in late February. That extra cost to customers is to pay for a $99.4 million reverse osmosis system to filter the harmful chemicals from Oostanaula River water.

The lawsuit is seeking to recoup some, or all, of the costs incurred by the city and water department customers to remove those toxic chemicals.

Because of the rate hike and other points, Pruitt stated that it would be tough to seat a jury in Floyd County Superior Court. The judge appeared to disagree with that point.

The attorneys for the City of Rome stated that it’s a moot point, as the issue has already been ruled upon.

“The last time we argued this was Groundhog Day, and it seems like it is all over again,” City Attorney Andy Davis said. In July 2020, a judge ruled on the change of venue motions from other parties in the lawsuit, Davis said.

“We’ve argued this, the court has decided it… Daikin has been very consistent with a strategy of delay,” he said.

A packed courtroom of attorneys representing the remaining 12 defendants in the lawsuit presented pretrial arguments this week. Of the original 50-plus defendants, only 12 remain, including Shaw Industries, 3M, Daikin America, DuPont, the Chemours Company, Mohawk, Aladdin Manufacturing Co., Engineered Floors LLC and Dalton Utilities.

Among a bevy of motions to be heard in court Tuesday were several challenges to the validity of expert witnesses.

Much of Tuesday morning’s hearing concerned the challenge to two of Daikin’s expert witnesses. One, a statistician, was expected to testify that there has not been an appreciable spike in cancer rates in Rome.

Davis argued the introduction of that testimony would muddy the water by introducing a cancer argument into the mix. The issue, he said, is that the actions of the defendants are forcing Rome to build a completely new water treatment facility to remove those chemicals.

Rome’s position is that EPA regulations state the presence of PFAS and PFOAS chemicals in drinking water leads to cancer and must be not allowed in a municipal water supply. In a statement concerning the presence of the toxic chemicals, the EPA stated “if fully implemented, the rule would prevent tens of thousands of serious PFAS-attributable illnesses or deaths.”

However, Theodore Grossman, representing Daikin, told the judge that Rome’s lawsuit rests on two factors: There are excessive amounts of the chemical in the Oostanaula River and that the chemical causes cancer.

Grossman argued that the statistician’s findings are important for their defense because it shows, essentially, that there’s been no increase in cancer rates.

“This statistician, who has never been to Rome, intends to opine that Floyd County is not a hot spot for cancer,” Davis scoffed, stating that the data chosen by Daikin’s experts were not applicable and any actual increase in cancer rates may not be known for years to come. “Either way, that’s not what the case is about, it’s not relevant.”

Judge Johnson stated he intends to not allow that particular testimony in trial.

“The issue here is not whether or not we have higher cancer rates, it’s whether or not (the City of Rome) is in compliance with the EPA standards,” Johnson said.

The series of hearings is expected to last through the end of the week and will continue on Wednesday morning. A tentative trial date is scheduled for June 5.

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