A set of Capital Region lawmakers on Wednesday introduced a bill that would set the deadlines by which those affected by environmental contamination would be able to file a lawsuit resulting from environmental contamination.
While the measure — described in a justification memo as creating “a narrowly tailored legal mechanism” — would apply statewide, it is being introduced with the PFOA contamination of the Hoosick Falls water supply very much in mind.
The legislation was introduced by Assembly members John McDonald of Cohoes, Steve McLaughlin of Schaghticoke and Sen. Kathy Marchione of Halfmoon. It would add a new section to civil procedure law and rules that, as described in the bill memo, “allows a personal injury action arising from exposure to chemicals or other substances contained within an area to be commenced within three years of the discovery of the injury, or within three years of when the injury reasonably should have been discovered, or within three years of that site’s designation as a state or federal superfund site, whichever is latest.”
The bill is backed by a consortium of local legal heavyweights including E. Stewart Jones, Donald Boyajian and Steve Coffey, as well as Hoosick Falls attorneys Ed Gorman and D.J. Tate. Jones and Gorman came to the Capitol on Wednesday to discuss the bill. The visit corresponded with news that the powerful personal injury firm Weitz & Luxenberg had filed a claim against two companies who used PFOA in Hoosick Falls over the past half-century.
“Right now, there are issues in respect to the statute of limitations that are concerning,” said Jones. “As the law presently exists, there’s a distinct probability that people who have legitimate claims are going to be shut out.”
Current law allows a personal injury lawsuit to be commenced up to five years from the date of discovery of the injury or the date it should have been discovered, whichever is earlier. “This bill is far more specific and far more protective,” Jones said.
McDonald — who splits Rensselaer County with McLaughlin, who represents Hoosick Falls — said he hadn’t spoken to any attorneys about the measure. “I’m more interested in the fact that what’s right is right and what’s wrong is wrong,” he said.
Jones said he had several clients in Hoosick Falls — some currently battling cancer they fear is related to PFOA exposure, others worried that their home values have been irreparably reduced.
The measure would also pertain to other types of civil actions stemming from such contamination, such as wrongful-death suits that could be brought by the family of someone who died as the result of exposure.
“We know that there have been deaths in Hoosick Falls from the types of cancers that have been specifically identified as related to this type of exposure,” Jones said. ” … Those families will never know justice under the existing law.”
Here’s the justification memo:
The recent discovery of water contamination in Hoosick Falls, New York and Flint, Michigan has raised great alarm across our country and our state. These instances of contamination have been cited as the potential cause of many previously unexplained illnesses suffered by members of those communities. In many cases, the statute of limitations to bring a personal injury action has long since run before any contamination was ever discovered. This bill seeks to address this inequity and give those who have been sickened legal recourse to be made whole.
This legislation would allow a personal injury action to be brought within three years of the time when a site containing chemicals and other substances has been designated as a state or federal superfund site. Under current state law, the three year statute of limitations for personal injury actions related to the latent effects of exposure begins to run when an injury is discovered or reasonably should have been discovered, whichever is sooner.
This bill would create a narrowly tailored legal mechanism to address instances where extraordinary circumstances negatively impact public health. What distinguishes the injuries suffered by many residents of Hoosick Falls from other exposure cases is that members of this community had no idea they had even been exposed to any hazardous toxins until years after they had become sick. Individuals in Hoosick Falls or those in any other circumstances which would fall under the scope of this bill should not be denied legal recourse simply because the statute of limitations has run on a claim they never knew that they had.
Here’s the pertinent bill language:
Notwithstanding any provision of law to the contrary, an action to recover personal damages for injury caused by contact with or exposure to any substance or combination of substances contained within an area designated as a superfund site pursuant to either Chapter 103 of Section 42 of the United States Code and/or Section 27-1303 of the Environmental Conservation Law, may be commenced within three years from the date of the discovery of such injury, or three years from the date when through the exercise of reasonable diligence the cause of such injury should have been discovered, or within three years of such designation of such an area as a Superfund site, whichever is latest.
Reprinted from the Times Union, Capitol Confidential
By Casey Seiler, Capitol bureau chief on February 24, 2016 at 11:58 AM