The Centolanza/Wack Rule: An Important New Tool For Toxic Tort Plaintiffs

BY GERALD J. WILLIAMS, ESQUIRE

In Wack, et al. v. Farmland Industries, Inc., et al., 1999 Pa. Super 327; 1999 Pa. Super. LEXIS 4635 (12/27/99), a unanimous panel concluded that claims for personal injury damages may be brought under the Storage Tank and Spill Prevention Act, 35 P.S. ''6021.101 et seq. ["Pa.STSPA" or "Tank Act"]. While, at first blush, the Court's conclusion may seem a mere incremental outgrowth of clear precedent, it promises to have a far-reaching and laudable impact on the litigation of environmental torts in Pennsylvania. For claims based on exposure to a wide variety of hazardous substances, the Wack decision may well elevate the standard of care borne by defendants, assure the award of counsel fees and litigation expenses to prevailing plaintiffs, and even alter the burden of proof in important respects.

The foundation of Wack was laid by the Pennsylvania Supreme Court in Centolanza v. Lehigh Valley Dairies, Inc., ___ Pa. ___, 658 A.2d 336 (1995). There, the Court held that a private plaintiff could bring a suit for damages under the Pa.STSPA. Its opinion was premised on time-honored principles of statutory construction. The Pa.STSPA is a remedial statute. Id. At 340. Its intended scope includes the imposition of liability for Aall damages@ caused by storage tank-related environmental contamination. Id., citing 35 P.S. '6021.102(b); see also, 35 P.S. '6021.1311(a). While the General Assembly did not specifically define damages for purposes of the Act, the Supreme Court recognized that "ambiguous language of a remedial act must be liberally construed." Id. It therefore had little problem holding that the provisions of the Pa.STSPA would apply in a damages action, even one seeking damages not specifically listed in the statute. Id., 658 A.2d at 340-1.

The Supreme Court explicitly invited the General Assembly to provide any necessary "clarification" of its intent. Id. Significantly, the legislature ignored an industry-led effort to amend the statute to overrule Centolanza. The 1998 amendments to the Pa.STSPA left untouched the provisions construed in Centolanza. See 35 P.S. ''6021.102, 1305, 1311. Thus, by the time Wack was decided on December 27, 1999, there remained little reason to doubt the wisdom of the Supreme Court's interpretation of the Act, and no reasonable basis for resisting its application to claims for personal injury damages.

The Centolanza/Wack rule goes a long way toward evening the odds in a field of litigation once tilted heavily in favor of usually well-heeled defendants and against the victims of environmental pollution. First, it means that those charged with the safe storage of highly toxic substances will be held to the standards of strict liability, at least "for all damages, contamination, or pollution within 2,500 feet of the perimeter of the site of a storage tank containing or which contained a regulated substance of the type which caused the damage, contamination or pollution." 35 P.S. '6021.1311. The imposition of such a standard of care vindicates the position of environmentalists and toxic tort plaintiffs who have long argued that the extreme dangers of toxic substances should render their handling an "ultrahazardous activity" with all the attendant responsibilities.

The Centolanza/Wack implication of a broad private cause of action under the Pa.STSPA also means that successful plaintiffs may take advantage of 35 P.S. '6021.1305(f), which permits courts to "award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." The potential recovery of such costs will serve to lessen the effectiveness of the frequently employed defense strategem of waging a war of attrition against plaintiffs who are usually far less able to bear the expenses necessary to prosecute heavily expert-laden, cost-intensive toxic tort litigation. While corporate defendants will likely always be able to outspend plaintiffs in the inevitable battles over causation and damages, the specter of an eventual cost recovery by plaintiffs will at least provide some balance to the equation.

Even more importantly, both the Centolanza and Wack courts have clearly stated that a plaintiff in a civil action under the Pa.STSPA may take advantage of the presumption contained in 35 P.S. '6021.1311(a). That section makes it:

a rebuttable presumption of law in civil and administrative proceedings that a person who owns or operates an aboveground or underground storage tank shall be liable, without proof of fault, negligence or causation, for all damages, contamination or pollution within 2,500 feet of the perimeter of the site...(emphasis supplied).

The statutory presumption may be overcome only by "clear and convincing evidence that [the defendant] did not contribute to the damage, contamination or pollution." Id.

The availability of the 2,500-foot presumption does not mean that an environmental plaintiff is excused from the need to prove a causal link between her illness and her exposure to toxic substance. Indeed, in Wack itself, the Court upheld the dismissal of the plaintiffs'claim that their decedent's adenocarcinoma of the buccal cavity, an extremely rare cancer, had been caused by benzene which had leaked from defendants= storage tanks. In doing so, it accepted the trial court's determination that plaintiffs' medical expert's opinion on causation failed to pass muster under the Ageneral acceptance@ doctrine enunciated in Blum v. Merrell Dow Pharmaceuticals, Inc., 705 A.2d 1314 (Pa. Super. 1997). It held that the expert's opinion could not establish any significant association between benzene and the decedent's specific cancer. But along with its holding, the Court provided an important gloss on the real effect of the presumption. It pointed out that a plaintiff "may take advantage of the presumption and the shift in the burden of proof without proving that [a defendant's] product caused the [plaintiff's illness], if they prove a product of the same type caused the cancer." 1999 Pa. Super. LEXIS 4635, p. 7 (emphasis in original). This potential shift in the burden of proof is extremely important in many environmental cases, in which defendants often posit alternative causes for illnesses, even those affirmatively linked to their products. Thus, for example, although it is well established that lead poisoning causes learning disabilities, defendant lead producers will often contend that a plaintiff's disability was caused by lead from some other source (e.g., leaded paint or leaded gasoline). Although there is a clearly established association between benzene and leukemia, benzene defendants often attempt to shift the blame to other substances, events or processes. The statutory presumption endorsed by the Centolanza/Wack rule seriously undermines such diversionary tactics in many cases, and will markedly improve the chances of plaintiffs to succeed.

Finally, and perhaps most significantly, the Centrolanza/Wack rule will not long remain confined to the Pa.STSPA, and the regulation of storage tanks. The Pennsylvania Hazardous Sites Cleanup Act, 35, P.S. '6020.101 et seq. ["HSCA"] governs liability for nearly every release of any hazardous substance from any facility. In virtually every other respect, HSCA's framework is identical to that of the Pa.STSPA. As with the Tank Act, HSCA has been consistently interpreted to provide a private cause of action. See, e.g., Smith v. Weaver, ___ Pa. Super. ___ 665 A.2d 1215 (1995); Toole v. Gould, Inc., 764 F.__, Supp. 985 (M.D. Pa. 1991). As with the Tank Act, the Supreme Court has held that HSCA is a remedial statute, and must be broadly interpreted to achieve its legislative purpose. Redland Soccer Club v. Dept. Of Army, ___ Pa. ___, 696 A.2d 137, 142 (1997). That purpose is the same as the Tank Act's: to provide "new remedies to protect the citizens of this Commonwealth against the release of hazardous substances." 35 P.S. '6020.102. Like the Tank Act, HSCA encompasses liability "for all damages." 35 P.S. '6020.1109. Like the Tank Act, HSCA contains a fee and cost-shifting provision. 35 P.S. '6020.1115(b). And here is the worst news for polluters: HSCA contains the same 2500 foot presumption as the Pa.STSPA, making a defendant who Acauses or allows the release of a hazardous substance@ liable, "without proof of fault, negligence or causation, for all damages, contamination or pollution within 2500 feet of the perimeter of the area where the release has occurred." 35 P.S. '6020.1109. There is no reason to expect that the courts will interpret HSCA differently from the Pa.STSPA. This means that, in an era in which toxic tort plaintiffs are otherwise faced with ever increasing obstacles, the Centrolanza/Wack rule will at least provide one additional weapon in the battle to protect environmental rights.

Gerald J. Williams is a partner in the law firm of Williams, Cuker & Berezofsky of Philadelphia, Pennsylvania and Cherry Hill, New Jersey. The firm concentrates its practice in complex civil litigation, including plaintiffs' toxic tort cases.