State lawmakers act to revive water suits

A group of Asheville residents has been pursuing a civil case against CTS Corp., an electronics manufacturer that had an Asheville operation in the 1960s and 1970s. CTS closed its doors and sold the property in 1987.

People who subsequently bought homes on and near the property didn't discover until 2008 – 21 years later – that their well water was contaminated with toxic chemicals from CTS that cause cancer, birth defects and other illnesses. They filed suit in 2011.

North Carolina's product liability law, written in 1979, strictly limits liability to 10 years from the last contaminating act, a time frame known as a "statute of repose" for civil claims.

Lower courts found that a 1980 federal environmental law preempts the state's limits. But the U.S. Supreme Court disagreed, ruling on June 9 that the state's statute of repose overrides the federal law and bars the plaintiffs from suing CTS.

The ruling would also affect a lawsuit over contaminated drinking water at Camp Lejeune filed against the federal government by thousands of retired Marines and their families who were exposed to toxins and radiation when they were stationed at the base between 1957 and 1987.

That case has been led by retired Master Sgt. Jerry Ensminger, whose 9-year-old daughter, Janey, died of a rare form of leukemia in 1985.  It would be 2007 before the full extent of the contamination was known. 

The federal government has also invoked the state's 10-year liability limit in its defense. 

Senate Bill 574 clarifies that North Carolina's product liability law does not apply to latent groundwater contamination claims.

Sen. Thom Goolsby, R-New Hanover, said the intent of the 1979 legislation was to limit liability for material goods and products.

"Unlike product liability, groundwater contamination claims arise from unknown exposure to unknown elements at unknown times. They have long latency periods," Goolsby explained.  Because of the Supreme Court's ruling, he added, "The General Assembly must clarify the text of the statute."    

The bill passed the Senate with little debate, 49-0.

It moved through the House in a single day last week, where Rep. Rick Glazier, D-Cumberland, explained the reason for the rush to passage. 

"The Supreme Court, in a way, it makes a final decision. It decides cases, but then there's a 30-day pending time frame afterwards before a mandate issues, which becomes the critical trigger date," Glazier said. 

He explained that House Bill 574 would allow both cases to stay alive on their merits – either through a Supreme Court rehearing, which would be extremely unusual, or more likely, through further filings in the case.

The change in the state law, once enacted by the governor, will give the plaintiffs a small window to revive the case before the Supreme Court's mandate is issued July 9.