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Pa. Judge OKs $45 Million Award for Building Contamination

A Pennsylvania trial court judge has rejected Monsanto's bid to reduce a $45 million jury award to the commonwealth after a state-owned building was found to be contaminated with PCBs. The court ruled that the presence of PCBs in the building was the proximate cause of Pennsylvania's claimed damages. Commonwealth of Pennsylvania et al. v. U.S. Mineral Products Co. et al., Nos. 284 M.D. 1990 and 244 M.D. 1996 (Pa. Commw. Ct. Nov. 1, 2002).

In June 1994 a fire broke out in a state-owned building in Harrisburg, Pa. The building was found to be contaminated with polychlorinated biphenyls and asbestos. After estimate s to repair the 31-year-old building topped $116 million, the decision was made to demolish it and erect a new building in its place.

Various state agencies filed suit against Monsanto Co. and other defendants in Pennsylvania Commonwealth Court in February 1996, seeking damages for the alleged PCB contamination.

The jury found Monsanto's product defective and a substantial factor in causing plaintiffs' damages. The jury assessed damages against Monsanto in the amount of $90 million. The verdict was subsequently reduced to $45 million.

Monsanto filed a motion for post-trial relief, arguing that the plaintiffs failed to prove a causal connection between the presence of trace amounts of PCBs in the building and their damage claims. Monsanto argued that the plaintiffs were required to present expert testimony to support a finding that PCBs could not be cleaned up and the building safely reoccupied, that PCBs required the demolition and reconstruction of the building, and that PCBs permanently damaged the building beyond repair.

During trial, various witnesses testified to support the state's assertion that the presence of PCBs in the building caused the state to demolish the building.

The secretary of the Department of General Services, Gary Crowell, testified that his decision to demolish the buildi ng was based primarily on the amount of contamination and the risk it posed for the occupants.

A contractor who performed safety and environmental work at the building said PCBs were discovered throughou t the structure approximately two weeks after the fire.

An industrial hygienist testified that there was widespread PCB contamination in the building exceeding the limits set by the Environmental Protection Agency and the National Institute for Occupational Safety and Health.

U.S. Senior District Judge Charles Mirarchi Jr. found that based on the testimony, a jury could reasonably conclude that the presence of PCBs in the building was both the cause in fact and the proximate cause of the plaintiffs' claimed damages.

Monsanto also argued that under Pennsylvania law, plaintiffs aren't entitled to recover either the cost of constructing a new building or the cost of abating and demolishing the building.

Judge Mirarchi explained that where injury to the property is deemed to be permanent, the measure of the dam ages becomes the decrease in the fair market value of the property. Richards v. Sun Pipe Line Co. , 636 A.2d 1162 (Pa. Super. Ct. 1994).

In Department of Transportation v. Estate of Crea, 483 A.2d 996 (Pa. Commw. Ct. 1977), the court created an exception to the general rule regarding the measure of damages. The court held that the proper measure of damages was the reasonable cost of replacement by a similar structure consistent with current standards of design.

Monsanto argued that the building at issue had an ascertainable market value in the Harrisburg commercial real estate market and that plaintiffs failed to prove otherwise.

Judge Mirarchi found that the plaintiffs had established that the building was part of the Capitol complex and that legislative approval would be required before it could be sold. The court found the evidence sufficient for the jury to find that the building had no value in the commercial sense and that the proper measure of damages was replacement cost.

Finally, Monsanto argued that the court should reduce the jury award because the verdict was plainly excessive and exorbitant.

In rejecting Monsanto's request, Judge Mirarchi, citing Bindschusz v. Phillips , 771 A.2d 803 (Pa. Super. Ct. 2000), explained that a trial court may only grant a request for remittitur when a verdict that is supported by the evidence suggest that a jury was guided by partiality, prejudice, mistake or corruption.

Copyright 2002 Andrews Publications, Inc.