October 26, 2020

Volume X, Number 300


October 26, 2020

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Maryland High Court Slashes Billion-Dollar Jury Award and Clarifies Toxic Tort Standards

Reversing nearly all of the $1.6 billion in jury verdicts that had been entered by lower courts, the Maryland Court of Appeals on February 26, 2013 issued a pair of opinions that may make recovery of damages more difficult for Maryland plaintiffs in toxic exposure cases.

In the two related opinions, Maryland’s highest court clarified the showing required for plaintiffs to prevail on medical monitoring, injury to real property, fraud, and emotional distress in the context of chemical exposure claims.

The cases arose from an accidental release, in February 2006, of 26,000 gallons of gasoline from an underground storage tank system at a service station in Jacksonville, Maryland. More than 500 Jacksonville residents and business owners filed suit in the two actions, asserting various tort-based claims and seeking compensatory damages (including medical monitoring, property damages and emotional distress) and punitive damages. In March of 2009, a group of about 91 families secured a jury award of roughly $147 million. In 2011, a group of more than 450 plaintiffs won a compensatory award of nearly $500 million and a punitive damages award of just over $1 billion.

The Court’s February 26 opinions dramatically reduced these awards – in many cases rejecting them entirely – in every damages category.

A brief summary of the Court’s holdings on certain key issues is set forth below.

  • Property damages: (i) In the absence of detectable contamination, no property damages may be recovered unless plaintiffs can show “more than a possibility of future contamination or mere annoyance;” (ii) property damages may not exceed the pre-contamination fair market value of the property; (iii) plaintiffs may not recover for both diminution of property value and past loss of use and enjoyment where such recovery is duplicative; and (iv) property damages must be established using market data unless a real estate expert can offer a reasonable justification for ignoring such data.

  • Emotional distress: (i) No recovery is permitted based on fear of loss of property value in the absence of a showing of fraud; and (ii) a plaintiff may recover for fear of contracting a latent disease (such as cancer) only where he can show he was actually exposed to a toxic substance due to the defendant’s tortious conduct, which led him to fear objectively and reasonably that he would contract a disease, and where he manifested a physical injury as a result of that fear.

  • Medical monitoring: This remedy is only available where the plaintiff (i) has been significantly exposed (i.e., above regulatory action levels) to a proven hazardous substance; (ii) suffers a significantly increased risk of latent disease as a result of that exposure; and (iii) reasonably requires periodic diagnostic medical examinations that are capable of detecting symptoms of the latent disease.

  • Punitive Damages: (i) To recover punitive damages based on a misrepresentation, plaintiffs must establish that they detrimentally relied on the misrepresentation; and (ii) members of the public may not recover damages for fraud based only on false statements made to the government.

The two decisions, Exxon Mobil Corp. v. Albright and Exxon Mobil Corp. v Ford, were decided unanimously and are certain to be cited widely by defendants in future toxic tort actions in Maryland. In particular, defendants will likely rely on the Court’s explanation that plaintiffs must establish actual exposure to or detections of chemicals (as opposed to potential future exposures or detections) – in some cases above regulatory standards – as a threshold requirement to recover on certain toxic tort claims.

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 96



About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Eric L. Klein Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Eric makes complex subjects simpler.

He is an environmental litigator in the Boston office of Beveridge & Diamond, with a national practice representing major companies and municipalities in a wide variety of matters including environmental and mass torts, class actions, and federal citizen suits under environmental statutes including the Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act. He has handled cases in state and federal courts throughout the United States, litigating complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals. He specializes in challenging and defending technical experts in complex environmental litigation.

Eric’s litigation practice encompasses a broad range of environmental matters, including the prosecution and defense of groundwater and site contamination cases, PCB cost allocations, environmental white-collar defense and internal investigations, and data compensation under FIFRA, the federal pesticide statute. In particular, Eric has defended some of the most significant environmental citizen suits filed in recent times, including the successful resolution of a $4 trillion Clean Water Act citizen suit filed against a major U.S. transportation company.

As a second-year law student, Eric argued before U.S. Supreme Court Justice Samuel Alito, who recognized Eric with "Best Oralist" and "Best Brief" awards. Following law school, Eric clerked for the Honorable Robert I. Richter at the Superior Court of the District of Columbia. He also serves as co-chair of B&D’s Pro Bono Committee and maintains an active pro bono practice, specializing in defending tenants in eviction actions. 

Eric’s core professional belief spans his careers in education and law: success lies in making complex subjects simpler.

Timothy M. Sullivan Environmental & Natural Resources Litigation Attorney Beveridge & Diamond Baltimore, MD
Office Managing Principal

Tim Sullivan’s practice focuses primarily on environmental and natural resources litigation before federal and state courts and adjudicatory bodies.

He represents and advises public and private clients in regulatory, litigation, and other matters involving many federal and state environmental and natural resources laws, with a particular emphasis on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Endangered Species Act (ESA), and the Clean Water Act. Tim is the Managing Principal of Beveridge & Diamond's Baltimore office.