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“There are supposed to be efficiencies in case consolidations,” appellate specialist Ellis Horvitz complained to a California appellate panel in Los Angeles Wednesday, as he argued against punitive damages against oil and chemical companies over their failure to disclose toxic hazards at Lockheed Corp.’s “Skunk Works” defense plant. “At what point are the defendants entitled to some peace?” Not yet, judging from comments by Justice Paul Turner. The 2nd District panel — Turner, Ramona Godoy Perez and Margaret Grignon — has for several years been reviewing trial court rulings arising from claims by some 600 factory workers who say they suffered brain damage, cancer and other ailments because they worked on top-secret aerospace contracts at Lockheed’s famous “Skunk Works” plant. The cases were divided into batches of 15 to 40 plaintiffs each, based on when and where they worked. Group 5 [also known as Aguilar v. Ashland, B128469] is pending before the 2nd District panel. In August 1998, the 38 plaintiffs in Group 5 won a $760 million punitive damages award from a jury, subsequently halved by the trial judge. Wednesday’s questioning suggested that a unanimous appellate panel is likely to follow the course it set in February when it dismissed the punitive damages for the Group 4 plaintiffs and sent compensatory damages back to be retried. That unpublished opinion, in Arnold v. Ashland, B121434, stated it was an error “to collaterally estop the defendants from litigating the failure to warn issues, and to instruct the jury, based on non-pilot jury findings, that inadequate warnings were issued.” But Turner made it clear from the outset that the Arnold decision should not be read as a bar to recoveries in the remaining three cases. “I hope you’re not suggesting in Group 6 that punitive damages can’t be pursued,” he said to Horvitz. “These are different people, different scenarios. … They may indeed identify some corporate bigwig with knowledge of the horrible consequences who made the deliberate, calculated, greed-driven decision [to expose workers to toxic chemicals].” Horvitz, of Encino, Calif.’s Horvitz & Levy, acknowledged that he wanted the issue of punitive damages closed. “There is no evidence to support oppression. It’s a negligence case, and it shouldn’t be romanced into something more,” he stated. And if plaintiffs do produce a smoking gun, he added, the burden should be on them to explain why they waited so long. A nice idea but not the law, countered Justice Grignon. Against the tide of the questioning, James Kropff, of Los Angeles’ Girardi and Keese, representing the workers, contended that any retrial for Group 5 should include an opportunity for the plaintiffs to present evidence of oppression. But Turner reminded him that it was the workers’ lawyers who chose to forgo that the first time around, agreeing that the trial judge could tell the later jurors that the earlier juries had found oppression. [What the later juries were not told was that even with findings of oppression, the earlier juries had declined to level punitive damages.] While opening the door a crack for future plaintiffs, Turner signaled that as a practical matter, they have little cause for celebration. While the passage of time favored the plaintiffs on compensatory damages, it puts them at a disadvantage in uncovering the details to support punitive damages, the justice said. “After 25, 30 years, you’re out in the cold.” The justice challenged Kropff to produce the name of a corporate officer who had acted despicably. “I can’t point to evidence outside the record to say that we merit a retrial,” Kropff replied. “But that’s not the test.” The defendants in the case are Exxon Corp., Union Oil Co. of California, Shell Oil Co., Ashland Chemical Co. and DuPont. Defense contractor Lockheed Corp., now Lockheed Marietta, has already settled with the plaintiffs.

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