Foundation Files Amicus Brief in ‘Lockheed IV’

In September 2004 the Foundation filed an amicus brief in the California Court of Appeal on behalf of a group of 11 distinguished scientists, including a Nobel Prize winner in Chemistry, in the latest phase of the seemingly interminable litigation (entitled Aguilar v. Exxon Mobil, et al. — Lockheed Litigation Cases (Group 4 and 5 retrial plaintiffs) (also known as "Lockheed IV"). This is another of the numerous litigations arising out of operations at Lockheed’s plants in Southern California. The cases arise out of the use and discharge into the soil and groundwater, of solvents and other chemicals used in the manufacture of "Stealth" aircraft at Lockheed plants in California. We argue that the trial court correctly excluded the testimony of plaintiffs’ sole expert for lack of a reliable foundation and that the trial court properly determined that none of the materials on which the expert relied provided a proper foundation for his opinions.

Some of the cases, for injuries allegedly caused by discharge of chemicals into the groundwater, were brought by persons living in the vicinity of the plants, and the relief sought was payment for "medical monitoring" of large numbers of individuals allegedly exposed to the hazardous chemicals through ingestion of drinking water; we had filed an amicus brief in one of those cases, in which the California Supreme Court ultimately agreed with our position that individualized factors of intensity and duration of exposure and age, physical condition, other exposures and prior medical history made it improper to certify a class. See Carrillo v. Lockheed Martin , below. In another class of cases, in excess of 600 current and former Lockheed workers sued the company, claiming that chemical substances to which they were exposed on the job caused them injuries as a result of Lockheed’s allegedly lax safety procedures and fraudulent concealment of known chemical hazards.

At the retrial of the Group 4 and 5 worker plaintiffs, plaintiffs proffered only one expert on general causation, who relied on a survey of epidemiology studies for his causation opinion. He concluded that the five chemicals at issue in this case had acute and chronic irritant and allergic, toxic effects on the nervous system, the kidney, and the liver, but he did not distinguish between chronic irreversible and acute reversible effects, even though acute effects were not at issue at this stage of the proceeding. Plaintiffs’ expert relied on epidemiology studies, animal studies, case reports, treatises, textbooks and toxic registries and the material safety data sheets with defendants’ warnings for the products at issue as the bases for his opinions. He was examined briefly in a hearing before the trial judge.