The 80-Year Liability

Selling a product today that contains a potentially harmful chemical can lead to liability risks many years in the future. That is the situation facing SQM North America Corp., which is currently embroiled in a suit in California arising out of SQM’s sale of fertilizer during the 1930s to 1950s.

The City of Pomona has alleged that SQM sold perchlorate-containing fertilizer to Pomona-area citrus growers from the 1930s to the 1950s, which, according to Pomona’s lawsuit, SQM allegedly knew contained the potentially toxic derivation perchloric acid. Pomona is seeking $31 million in damages for alleged groundwater contamination that it claims resulted after the perchlorate took decades to permeate through the soil.

As one might expect, tracing the source of the perchlorates has been a key and disputed issue in the case. To make its case, Pomona enlisted Neil Sturchio, a geochemist, to determine the source of the contamination. Sturchio used a controversial technique – known as stable isotope analysis – to claim that the perchlorate in the drinking water can be definitively traced to the Atacama Desert, where SQM mined nitrate for their fertilizer. After the trial court precluded Sturchio from testifying, the Ninth Circuit reversed and found that the method’s credibility would be reserved for the jury.

This case highlights the long-term risks associated with changing methods of analysis. As new analytical methods are developed, manufacturers face the possibility that a nascent technique may be used to support litigation that was not previously supportable. Notwithstanding the time-honored admonition that “law lags science; it does not lead it,” companies do, at times, find themselves on the front lines of a litigation battle over the merits of a novel scientific theory. When that happens, a company facing such a challenge should ensure that the science supporting the claim against it is fully explored and challenged.

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