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Beyond Erin Brockovich and a Civil Action: Should Strict Products Liability Be the Next Frontier for Water Contamination Lawsuits?

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Beyond Erin Brockovich and a Civil Action: Should Strict Products Liability Be the Next Frontier for Water Contamination Lawsuits? Washington University Law Review Volume 80 Issue 1 January 2002 Beyond Erin Brockovich and A Civil Action: Should Strict Products Liability Be the Next Frontier for Water Contamination Lawsuits? Jim Gash Pepperdine University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Environmental Law Commons, and the Torts Commons Recommended Citation Jim Gash, Beyond Erin Brockovich and A Civil Action: Should Strict Products Liability Be the Next Frontier for Water Contamination Lawsuits?, 80 WASH. U. L. Q. 51 (2002). Available at: https://openscholarship.wustl.edu/law_lawreview/vol80/iss1/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. BEYOND ERIN BROCKOVICH AND A CIVIL ACTION: SHOULD STRICT PRODUCTS LIABILITY BE THE NEXT FRONTIER FOR WATER CONTAMINATION LAWSUITS? JIM GASH * INTRODUCTION Erin Brockovich may have actually missed something.1 Jan Schlichtmann in A Civil Action definitely missed it.2 While both alleged that big companies contaminated the local groundwater and injured the people who drank the water, neither sued the sellers of the water under a strict products liability theory. In fact, the strict products liability cause of action has been almost entirely ignored in water contamination lawsuits. That promises to change. As litigants search for potentially easier ways to recover in these lawsuits and additional defendants from whom to recover, strict products liability will likely play an increasingly prominent role in such lawsuits. For those who have not seen Erin Brockovich or A Civil Action, both of which are advertised as true stories,3 a brief summary is in order. Erin * Associate Professor, Pepperdine University School of Law. I want to give special thanks to Professors Rick Cupp and Robert Cochran for their helpful comments on an early draft and to research assistants Dan Droog and Jack White for their excellent substantive assistance. I would also like to thank Scot Wilson and Christian Puzder for their technical help. I am also grateful to Pepperdine University School of Law for funding this Article through a summer research grant. 1. See ERIN BROCKOVICH (Universal/MCA 2000). Erin Brockovich is a major motion picture starring Julia Roberts as the title character. 2. See JONATHAN HARR, A CIVIL ACTION (1996). Harr’s book was a huge success, see Bestsellers, WASH . POST, Apr. 18, 1999, at X11 (listing Harr’s book for over seventy weeks as a top- selling paperback), and was later made into a major motion picture starring John Travolta as Jan Schlichtmann, who was lead counsel for the plaintiffs. See A CIVIL ACTION (Touchstone Pictures 1999). 3. Many argue that Erin Brockovich is more properly viewed as fiction. See, e.g., 20/20: Fact or Fiction (ABC television broadcast, July 14, 2000) (questioning Erin Brockovich’s claim to be based on a true story and the claim that drinking contaminated water caused the illness described in the movie); Michael Fumento, ‘Erin Brockovich,’ Exposed, WALL ST. J., Mar. 28, 2000, at A30 (arguing that the scientific evidence does not support the movie’s claims); Gina Kolata, Editorial, A Hit Movie Is Rated ‘F’ in Science, N.Y. TIMES, Apr. 11, 2000, at F7 (claiming that “[i]t should be no surprise to viewers of the hit movie Erin Brockovich that the science portrayed in the movie is not really science”). But see Erin Brockovich & Gary A. Praglin, Letter to the Editor, ‘Erin Brockovich,’ Affirmed, WALL ST. J., Apr. 6, 2000, at A23 (claiming that the scientific evidence does prove that exposure to water contaminated with chromium “damaged the health of countless people”). See also Robert W. Welkos, Calendar, Digging for the Truth with Tensions over Accuracy in Film Running High, ‘Erin Brockovich’ Pays Attention to Real Life Detail, L.A. T IMES, Mar. 12, 2000, at 8, available at 2000 WL 2219690 (explaining the controversy over the accuracy and creative license taken in both A Civil 51 Washington University Open Scholarship p 51 Gash book pages.doc 8/5/2002 6:04 PM 52 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 80:51 Brockovich chronicles a two-year period in the life of a single -mother-turned- paralegal who almost single -handedly researches, develops, and directs a class-action lawsuit on behalf of residents of a small California community against a large corporate utility company.4 The lawsuit alleges that hundreds of residents of the community became seriously ill after drinking tap water drawn from groundwater that supplied municipal wells—wells that had been contaminated by the corporate utility’s systematic disposal of waste chromium at its nearby facility. 5 The utility company that contaminated the groundwater was the sole defendant in the lawsuit.6 Similarly, in A Civil Action, a group of families in a small Massachusetts town contended that the tap water supplied by the city was contaminated with, inter alia , a volatile organic compound called trichloroethylene (TCE), ingestion of which caused their children to contract leukemia.7 A contentious issue in the litigation was which of the corporate defendants operating near the river feeding the municipal wells supplying the town’s tap water had actually caused the TCE contamination.8 After the first stage of a bitter bifurcated trial, the parties settled for only a fraction of what the plaintiffs had sought,9 and the attorneys representing the plaintiffs suffered financial ruin as a result of the litigation. 10 In both cases, the alleged groundwater contaminators were the only Action and Erin Brockovich, but claiming that the Brockovich film closely followed real life events). But cf. Cathy Booth, Getting Angry over Erin , TIME, May 1, 2000, at 70, available at 2000 WL 17633151 (reporting that “some Californians depicted in Erin Brockovich say the movie misrepresents their fight with PG&E”). The same has been said concerning A Civil Action. See, e.g., Sharon Waxman, Bad Blood: A Lawsuit’s Bitter Legacy: Disney’s ‘Civil Action’ Revisits an Irretrievably Poisoned Past, WASH . POST, Dec. 28, 1998, at C1 (stating that in the movie, like the actual lawsuit, “the truth in such cases is often confused.”). 4. The plaintiffs in the class action lawsuit lived in or near Hinkley, California, which is located in San Bernardino County. The defendant was Pacific Gas & Electric (PG&E), a San Francisco-based utility company. See ‘Brockovich’ Jabs PG&E as New Trial Looms, GAS DAILY, Apr. 3, 2000, available at 2000 WL 8754026. 5. See ‘Brockovich’ Jabs PG&E as New Trial Looms, supra note 4; Welkos, supra note 3, at 8. 6. I will stop my summary at this point so I do not ruin the movie for those who have yet to catch it on video. 7. See Anderson v. Cryovac, Inc., 96 F.R.D. 431, 431 (D. Mass. 1983) (stating that plaintiffs’ and their decedents’ claimed to have suffered from leukemia and other health problems as a result of ingesting contaminated water). See also HARR, supra note 2, at 81-82. 8. See HARR, supra note 2, at 236-38. See also Litigation: Waste from W.R. Grace Contaminated Wells, Jury Determines in Woburn Leukemia Lawsuits, 17 ENV’T RPTR. 486 (1986), available at 17 ER 486 (Westlaw citation). 9. See HARR, supra note 2, at 446-48. See also Litigation: Parties Announce $8 Million Settlement in Woburn, Mass., Water Contamination Suit, 17 ENV’T RPTR. 774 (1986), available at 17 ER 774 (Westlaw citation). 10. See HARR, supra note 2, at 488-92. See also Steve Bailey, Sobol & Schlichtman, BOSTON GLOBE , June 7, 2000, at C1, available at 2000 WL 3329524 (stating that even though Schlichtman gained notoriety from the lawsuit, he was left “beaten and bankrupt.”). https://openscholarship.wustl.edu/law_lawreview/vol80/iss1/2 p 51 Gash book pages.doc 8/5/2002 6:04 PM 2002] BEYOND ERIN BROCKOVICH AND A CIVIL ACTION 53 defendants. Although there was never a dispute in either case that the municipal wells were, in fact, contaminated, the plaintiffs never sued the municipal owners and operators of the wells that supplied the contaminated water.11 And in both cases, the causes of action alleged were limited to negligence, nuisance, and strict liability for abnormally dangerous activities; strict products liability was never alleged.12 This Article explores the yet unexplored—the viability of strict products liability against sellers of contaminated water.13 Part I sets the factual context for the Article, briefly describing the nature and scope of this nation’s groundwater contamination problem, and explains why, though historically ignored, strict products liability may figure prominently in current and future water contamination litigation.14 Part II sets the legal context for the Article, very briefly outlining the evolution of strict products liability from its birth in Greenman v. Yuba Power Products, Inc.,15 through its maturation as urged in the recent Restatement (Third) of Torts: Products Liability (hereafter Restatement Third).16 Part III then analyzes whether each of the necessary elements of a strict products liability cause of action is sufficiently satisfied to warrant its application to the sale of contaminated water.17 Part III concludes that contaminated water is properly characterized as a manufacturing defect and thus subjects the seller of the water to strict liability.18 Part IV traces the historical public policy foundations for imposing strict liability and explores whether its application to the sale of contaminated water furthers or undermines the interests sought to be advanced or protected by strict products liability.19 Part V then highlights the critical importance of quality control as a pivotal public policy factor in strict products liability.
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