City of Atwater v. Shell Oil Co. et al.

Toxic tort

Merced County

Superior Court Judge Brian L. McCabe

Plaintiff's attorneys: Miller Axline & Sawyer, Duane C. Miller

Defense attorneys: King & Spalding LLP, Tracie J. Renfroe, Megan R. Nishikawa; Steptoe & Johnson LLP, Cal R. Burnton

In one of a series of toxic tort cases over liability for the presence of the chemical 1,2,3-Trichloropropane (TCP) in drinking water in cities up and down the Central Valley, a Merced County Superior Court jury awarded $53 million in compensatory damages and $10 million in punitive damages to the City of Atwater against defendant Shell Oil Corp. and others.

TCP has been recognized in California as a human carcinogen.

Atwater's outside counsel, Duane C. Miller of Miller & Axline PC, said the win follows another for the City of Clovis in 2016. That one resulted in a $22 million award. "Our firm is highly specialized; we represent public entities when their drinking water becomes contaminated. You can drive Highway 99 and see my clients right and left. We go against the Shells and Exxons. In TCP cases, the defendants' own internal documents and employees make the argument for us. They knew there was a problem with this stuff, and they didn't disclose it." City of Atwater v. Shell Oil Co., 17 CV-04188 (Merced Cty. Super. Ct., filed May 6, 2005).

Representing Shell Oil, Tracie J. Renfroe of King & Spalding LLP said she was authorized by her client to say only a limited amount about the case. She noted that the defendants contended that the vast majority of contamination came from nearby Castle Air Force Base, a now-closed Strategic Air Command facility. The base "had a long history of groundwater contamination and was classified as a CERCLA Superfund Site in the 1990s," she emailed, referring to areas identified under the Comprehensive Environmental Response, Compensation and Liability Act. "Defendants also contended that the contamination in the wells exists in ultra-low concentrations, is diminishing and presents no human health risk."

Miller said the Castle Air Force Base defense fared poorly in court. "Their expert didn't do well--they'd promised the jury that the base was an alternative source, but that blew up in their face. Some of the expert's reports contained facts that were unfavorable to Shell, and he urged using caution with TCP. But the slides he showed in court had the caution comments deleted, and that had a big impact on his credibility with the judge and jury.

"I've been doing this for 30 years, and I knew to look for discrepancies like that. It was a very satisfying discovery. I knew he'd have problems on the witness stand and I was looking forward to that cross-examination."

--John Roemer