Corporate Countersuit Fails


In a toxic tort suit stemming from pollution in a small Nevada town that may be responsible for a leukemia cluster that has sickened 17 children and killed three, Kennametal Inc. sought to protect itself against wrongful death charges by bringing a countersuit against the US Navy.

Kennametal is one of several defendants in the case, which also include Kinder-Morgan Energy Partners, which owns a jet fuel pipeline that runs through the town, and several other firms related to the pipeline, including contractors and right-of-way owners.

Kinder-Morgan, whose slogan “A Different Kind of Energy Company” is reminiscent of Enron in its heyday, has, of course, denied that the jet fuel pipeline is at all related to the leukemia cluster. Their argument is supported by Federal Investigators, who said there are no chemicals or fuels in the drinking water. According to the federal Agency of Toxic Substances and Disease Registry (ATSDR), “The Fallon pipeline does not pose a current or future public health hazard. Information regarding the pipeline was evaluated from 1970 to the present. Based on the information provided, the pipeline did not pose a public health hazard during that time period.” However, some note that the information on the pipeline had not been independently verified by the agency, but relied on information from Kinder-Morgan, the Navy, and a superficial survey by the state.

The United States Geologic Survey (USGS) also reported that the area’s wells were free from solvents, pesticides, or jet fuel. The wells were high in naturally-occurring arsenic and radiation, although these impurities have been present since at least a 1989 survey, and, officials said, were unlikely to be the cause of the sudden cancer cluster.

Local residents charged that the reports constituted a “whitewash,” saying that if the ATSDR “really wanted the truth, they’d look for it.”

The pipeline carries JP-8 jet fuel, which has been linked to DNA damage–a common precursor to cancers–immuno-suppression, and damage to the lung, kidney, and liver.

Most of the families of leukemia victims live within one-third mile of the pipeline.

Sierra Vista, an Arizona town which also suffered a similar spike in childhood leukemia in 2002 shares one important feature with Fallon: it also has a military airfield that uses JP-8 fuel.

On the other hand, high levels of tungsten were found in Fallon residents and in tree-ring samples taken from Sierra Vista trees and those of a Sacramento County neighborhood with a suspected cancer cluster.

Kennametal’s suit against the Navy was dismissed by lawyers for the children’s families as a “sham” designed to get the corporation out of state court, where it has suffered negative rulings in the past. US District Judge Brian Sandoval agreed, returning the case to state courts and dismissing the suit against the Navy.

While it is true that Kennametal’s suit against the Navy was probably designed as a defense mechanism, it does cause one to wonder why the Navy is not named as a defendant, since it must be held partially responsible if Kinder-Morgan is found culpable. Further, it is more likely that the Navy is responsible, since Navy jets regularly jettison fuel. Navy lawyers have argued that the government is immune from such suits, but is it and should it be? The only way to find out is to test the limits of the law by bringing suit. If you or someone you love has suffered a toxic tort and you want to find those responsible and punish their actions, please contact today to get in touch with a lawyer with the skill and tenacity to pursue your case to its ultimate conclusion.