27 November 2002
Cancer claims against Rocketdyne can go to trial
Lab cases revived
By Lisa Mascaro Staff Writer
Los Angeles Daily News

The U.S. 9th District Court of Appeal overturned a lower court's finding that the plaintiffs failed to file their cases in time under the statute of limitations and should have suspected the lab in their illnesses. However, it upheld the lower court's dismissal of 34 of 52 claims.

"It's a big victory for all the people in the community," said Troy A. Thielemann, an attorney for the Santa Barbara-based firm Cappello &McCann, which represents 300 people who have filed various other suits against the company.

"There are other people sitting in the wings in other cases this will affect," he said. "We think it's a tremendous win. It's a case that's going to be very important to future cases, as well, in the toxic tort arena." A spokesman for Boeing Rocketdyne said the company believes the case has no merit, and said a jury could still uphold the statute of limitations.

"We still stand by what we said before. The plaintiffs have offered no scientific evidence to this point. The case is of no merit. Ultimately it will be decided that we're not at fault," said Boeing spokesman Dan Beck.

The plaintiffs filed suit in 1997 claiming hazardous radioactive and other substances released from Rocketdyne caused their illnesses, which include cancers and other problems. The original suit involved six plaintiffs, but was amended several times adding new plaintiffs and claims. Seven of the 52 plaintiffs are estates of people who died, according to the court.

The plaintiffs live or have lived in the San Fernando or Simi valleys, where Rocketdyne for decades conducted nuclear energy and rocket testing at its lab in the hills in between the two valleys.

The Daily News in 1989 reported that nuclear and chemical contamination had been found on the site, and a pair of UCLA studies in 1997 and 1999 found higher cancer mortality rates among workers in certain jobs at the site.

Nuclear testing was shut down and the site is now under a federally funded, $186-million environmental cleanup that is slated to be complete in coming years.

The lower court threw out most of the claims in March 2000, saying the statute of limitations required that plaintiffs needed to have filed their personal injury claims
within one year of knowing about their problems. Five of the cases were reinstated later that year.

The lower court said that "past publicity about releases of potentially hazardous substances from the Rocketdyne facilities should have led" many of the plaintiffs to suspect that the defendants caused their injuries prior to the first UCLA study being released, according to Wednesday's ruling.

But the appeals court disagreed in a 2-1 decision released Wednesday.

"We reverse the district court's ruling that ... publicity about the Rocketdyne facilities was sufficient for a reasonable plaintiff to know that Defendants' actions were the cause of his or her injury," the appeals court wrote.

"Summary judgment was improper because factual disputes remain over whether Plaintiffs knew or should have known of their claims more than a year before they filed them."

The 18 plaintiffs who filed after the 1997 UCLA study was released were allowed by the appeals court to go forward with their claims.

The appeals court upheld the lower court's dismissal of 34 of the plaintiffs who filed before the UCLA study was released. It said they failed to offer evidence "regarding how and when they discovered their claims."

The case, O'Connor vs. Boeing, was among the first personal injury cases filed after concerns were raised about contamination from the field lab, Thielemann said.

A class-action suit by the same law firm that would have involved potentially thousands of healthy residents across the two valleys and set up medical monitoring for them was thrown out in 2000.

Now Cappello &McCann is handling 10 Rocketdyne-related cases involving 300 personal injury and wrongful death plaintiffs.

Thielemann said Wednesday's ruling has the potential to affect many of the other Rocketdyne-related cases his firm is handling, as well as those in other communities with environmental suits that deal with the statute of limitations issues.