Environmental Litigation

Cotten Schmidt, L.L.P.’s environmental litigation experience extends over 20 years, serving our clients primarily in the areas of defense and compliance, but also as plaintiffs. Our expertise in this area is extensive and broad.  It includes air, soil, water, groundwater, and underground contamination, hurricane recovery, global warming/climate change, clean-up, and compliance issues in numerous jurisdictions throughout the United States.  We also provide environmental compliance counseling; and additionally advise our clients on environmental issues when they arise in otherwise non-environmental matters, from real estate transactions to shipping.

Our experience, common sense approach, responsiveness to our clients, and high-tech resources make Cotten Schmidt, L.L.P. exceptional in this field.  We understand and navigate the intricacies of the local, state, and federal laws and regulations involved; comprehend the science behind the issues, and take the time to learn our clients’ financial and policy concerns.

As lead counsel, as well as co-counsel with other firms, our attorneys have successfully handled complex claims for personal injury and property damage due to alleged environmental contamination, assertions of environmental violations, and demands for remediation.  Our attorneys:

• Presently serve as National Counsel for a Fortune 100 Company in groundwater contamination issues and other environmental litigation.

• Represent multiple clients in one of the country’s largest global warming/climate change matters, originally filed in federal court in Mississippi.

Effective Representation

Dismissal of $1 billion Arkansas case.  The plaintiffs claimed that the defendants were the owners and operators of a chemical plant site in Arkansas that had various chemical compounds containing ethylene dichloride (EDC).  Allegedly, three on-site waste “ponds” were used to dispose of “washout water” and “off-spec” product; corroding drums believed to contain hazardous substances including Dinoseb and Nitrated Benzoate Ester (“NBE”) were buried in various pits throughout the site allowed chemical compounds to seep into the soil and groundwater; and test wells were placed on the site and on Plaintiffs’ property in order to test for water and soil contamination, and EDC seeped into the alluvial aquifer, resulting in soil and water contamination of Plaintiffs’ property. Plaintiffs brought multiple causes of action against Defendants on grounds that the release of EDC resulted in contamination of the soil and groundwater. The plaintiffs sought damages in excess of $1 billion for remediation of the site.  Byron Kitchens, from our New Orleans office, convinced opposing counsel that the firm’s client did not have any connection to the detected chemicals during the relevant time frames.  After months of persistent battling, Mr. Kitchens obtained a dismissal with prejudice of our client from this matter.

Dismissal of climate change class action.  The case of Comer v. Murphy Oil USA involves Mississippi residents who sued an assorted group of energy, oil, and chemical companies, asserting that the defendants were responsible for greenhouse gas emissions that amplified the severity of Hurricane Katrina and resulting damage. The Mississippi federal district court dismissed the Plaintiffs’ claims based on both the political question and standing grounds.  Then, a three-judge panel of the Fifth Circuit Court of Appeals reversed, holding that the case did not present a non-justiciable political question and that the Plaintiffs have standing to pursue state law damage claims for negligence, trespass, and nuisance. Defendants, including one of our clients, applied for and were granted rehearing en banc.  However, before rehearing, the Court of Appeals lost its quorum due to a number of recusals.  The remaining judges concluded that without a quorum they lacked judicial authority over the case and dismissed the appeal, thereby reinstating the decision of the federal district court, which dismissed the case.  The U.S. Supreme Court denied the Plaintiffs’ Petition for a Writ of Mandamus. The case, however, is still ongoing.  The plaintiffs refiled their claim in Mississippi federal district court and were again dismissed, and the case is once again on appeal before the U.S. Fifth Circuit.

Glen Strong v. E. I. du Pont de Nemours & Co.  Plaintiffs brought claims in this multi-million dollar action against our client, DuPont, alleging that dioxins and heavy metals from DuPont’s DeLisle, Mississippi, facility caused Mr. Strong’s multiple myeloma.  The case was heavily focused on scientific and causation issues.  It was the first to proceed to trial out of approximately 2300 claims allegedly arising from operations at the DeLisle plant, all of which were handled by this firm. We defended DuPont in a 1 1/2 -week jury trial in 2005 in Jones County, Mississippi.  Although the jury’s verdict favored the plaintiffs, we appealed, and the jury’s verdict was reversed by the Mississippi Supreme Court. We retried the case in 2008.  After approximately two (2) weeks of trial, the plaintiffs’ attorneys sought as much as $24 million in damages against DuPont.  A unanimous twelve (12) person jury returned a verdict in DuPont’s favor.

Ladner v. E. I. du Pont de Nemours & Co.  Plaintiff filed suit on behalf of her deceased daughter, who suffered from congenital heart defects and had died from liver cancer.  The plaintiff claimed that both conditions were caused by dioxins and arsenic released from DuPont’s Delisle, Mississippi, plant.  In 2007, we tried this matter to a Jones County, Mississippi jury.  Plaintiff sought compensatory damages from the jury of up to $30 million.  After short deliberations, the jury rejected the plaintiff’s claim.  Her lawyers were postured to proceed to a second, punitive phase of the trial, which was thwarted by the verdict in our client’s favor.  The plaintiff did not appeal the verdict.

Chemical tank trailer leaks.  In 2008 we obtained a defense verdict in a jury trial arising from allegations of illness caused by exposure to leaks from chemical tank trailers.  After over 5 weeks of trial, plaintiffs asked for $40 million in damages.  However, the jury returned a unanimous verdict for the defendants after only 45 minutes of deliberation.

Tractebel Energy Marketing Inc. v. E. I. du Pont de Nemours & Co.  We represented DuPont in a commercial litigation case where plaintiffs alleged DuPont breached a contract for the sale of nitrogen oxide emission reduction credits.  In a 12-day jury trial in Houston, Texas, plaintiffs requested the jury award at least $4.5 million in damages for the alleged contract breach.  And, because Texas law provides for an award of attorney’s fees to a party that proves a breach of contract and is awarded damages resulting from the breach, plaintiffs requested an attorney’s fee award in excess of $500,000.00.  The jury found a contract was entered into but – significantly – that it was commercially impracticable for DuPont to have performed the contract.  Consequently, DuPont was not liable for the breach.

Crowe v. Pearl River Polymers Corp. We represented one of two defendants in a case involving a chemical release. The plaintiffs sought to certify a class covering the Town of Pearl River, Louisiana.  We tried the class certification issue was tried in St. Tammany Parish, Louisiana.  Class certification was successfully denied on grounds that significant areas of the Town of Pearl River did not reach airborne contamination sufficient to cause injury, and the claims of the proposed class representatives were not typical of the members of the purported class.

Bonnette v. Conoco, Inc.  Residents of Westlake, Louisiana, alleged that contaminated fill dirt removed from a local Conoco facility was deposited on their properties as topsoil.  After a 6-week bench trial before the 14th Judicial District Court, Calcasieu Parish, the court awarded damages to the trial plaintiffs, and the judgment was affirmed by the Louisiana Third Circuit Court of Appeal.  The Louisiana Supreme Court, however, overturned the trial court’s decision in most notable respects, dismissing the plaintiffs’ claims for physical injuries, punitive damages, and increased risk of developing asbestos-related cancer in the future.