Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.1 Page 1 of 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 BARON & BUDD, P.C. Scott Summy (pending Pro Hac Vice) (Texas Bar No. 19507500) John P. Fiske (SBN 249256) Celeste Evangelisti (SBN 225232) 603 Coast Hwy, Suite G Solana Beach, California 92075 Telephone: (214) 521-3605 Fiske@BaronBudd.com GOMEZ TRIAL ATTORNEYS John H. Gomez (SBN 171485) Deborah Dixon (SBN 248965) 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 DDixon@GomezTrialAttorneys.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RONALD COX, individually; VICTOR COX, individually; and ADAM COX, individually, by and through his durable power of attorney, VICTOR COX; ) Case No.: '17CV1211 AJB KSC ) ) CLASS ACTION COMPLAINT FOR: ) ) 1. Wrongful Death Plaintiffs, ) v. ) AMETEK, INC., a Delaware corporation; ) THOMAS DEENEY, individually; and ) DOES 1 through 100, inclusive, ) DEMAND FOR A JURY TRIAL ) Defendants, ) ) v. ) MELODY ANNE COLE, individually; ) STEPHANIE MARIE WILSON, ) individually, ) ) Nominal Defendants. 28 COMPLAINT FOR DAMAGES inewsource.org Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.2 Page 2 of 29 1 Plaintiffs, RONALD COX, individually; VICTOR COX, individually; and 2 ADAM COX, individually, by and through his durable power of attorney, VICTOR 3 COX, allege the following based on information and belief: 4 PARTIES 1. 5 Plaintiff RONALD COX (“Ron”) is an adult son of decedent Arla, and 6 resides in San Diego, California. He brings this action as an heir to the decedent 7 pursuant to California Code of Civil Procedure §377.60. 2. 8 Plaintiff VICTOR COX (“Victor”) is an adult son of decedent, ARLA 9 COX (“Arla”), and resides in Prescott Valley, Arizona. He brings this action as an heir 10 to the decedent pursuant to California Code of Civil Procedure §377.60. Victor is also 11 the attorney in fact, pursuant to a durable power of attorney, for his adult, incompetent 12 brother, Plaintiff Adam Cox. 3. 13 Plaintiff ADAM COX (“Adam”) is an adult son of decedent, Arla, and 14 resides in Prescott Valley, Arizona. Victor Cox brings each and every allegation as 15 attorney in fact, pursuant to a durable power of attorney, for his incompetent brother, 16 Plaintiff Adam, pursuant to Plaintiff Adam’s standing as an heir to the decedent 17 pursuant to California Code of Civil Procedure §377.60. 4. 18 Defendant AMETEK, INC. is a corporation organized and existing under 19 the laws of Delaware with its principal place of business at 1100 Cassatt Road, 20 Berwyn, Pennsylvania 19312 (“AMETEK”). 5. 21 Defendant THOMAS DEENEY is a natural person who resides in 22 Pennsylvania and who is a corporate officer and employee of Defendant AMETEK, 23 INC. 24 negligence, negligence or otherwise, for the occurrences herein alleged, and for 25 Plaintiffs’ resulting harm. At times relevant to this Complaint, Defendant THOMAS 26 DEENEY acted as the agent, servant, and/or employee of AMETEK, and was acting 27 within the course and scope of said agency and employment. 28 Defendant THOMAS DEENEY is responsible by act or omission, gross 6. Unless otherwise indicated, the use of any Defendant’s name in this -1COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.3 Page 3 of 29 1 Complaint, including “Defendants,” includes all agents, employees, officers, members, 2 directors, heirs, successors, assigns, principals, trustees, sureties, subrogees, 3 representatives and insurers of the named Defendants. 7. 4 The true names and capacities of the defendants named herein as Does 1 5 through 100, inclusive, whether individual, corporate, governmental, associate or 6 otherwise, are unknown to Plaintiffs, who therefore sues such Defendants by fictitious 7 names. Plaintiffs will amend this complaint to allege their true names and capacities 8 when ascertained. Each of the Doe Defendants is responsible in some manner, either by 9 act or omission, strict liability, fraud, negligence or otherwise, for the occurrences 10 herein alleged, and Plaintiffs’ harm was legally caused by conduct of the Doe 11 Defendants. Does 1 through 100, inclusive, are responsible to Plaintiffs on the facts and 12 theories herein alleged. 13 fictitiously named, was the agent, servant, and/or employee of each of the remaining 14 Defendants, and was acting within the course and scope of said agency and 15 employment. Each of the Defendants is in some manner responsible for the events and 16 happenings to which reference is made herein, and each Defendant caused injury and 17 damage to Plaintiffs as herein alleged. The acts of Defendants and each of them were 18 and are the acts of the other Defendants. Defendants, and each of them, ratified, 19 authorized, and/or approved of the acts of the other Defendants. 8. 20 At all relevant times, each Defendant, including those MELODY ANNE COLE and STEPHANIE MARIE WILSON are the 21 adult daughters of decedent Arla Cox, and they are named herein as nominal defendants 22 since, at the time of filing this complaint, Plaintiffs are uncertain whether they intend to 23 pursue the wrongful death claim set forth herein. Plaintiffs do not allege that the 24 persons named herein as nominal defendants did anything wrong or caused any harm to 25 Arla Cox, but rather have named them in this lawsuit as nominal defendants only 26 because that is what the law requires under these circumstances. 27 /// 28 /// -2COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.4 Page 4 of 29 1 2 JURISDICTION AND VENUE 9. Diversity Jurisdiction exists under 28 U.S.C. §1332 because Plaintiff is a 3 resident of California, but all Defendants are residents of or have principal places of 4 business in states outside of California. 5 10. Venue is proper in this Court in that the subject acts and transactions 6 giving rise to this action occurred in the Southern District of California for the 7 following reasons: 8 a. Defendants do or did conduct business in the Southern District of 9 California and have intentionally availed themselves of the laws and 10 markets within Southern District of California by owning and 11 operating, or having owned and operated, the subject aerospace plant 12 which is the source of the subject contamination, at 790 Greenfield 13 Drive in El Cajon, California; b. The injury and harm to Plaintiffs occurred within the Southern District 14 of California in the City of El Cajon. 15 c. The toxic groundwater plume, which is the subject of this lawsuit, is 16 within the Southern District of California. 17 d. Three “Related” actions are currently filed in the Southern District of 18 California, and this case should be Related to those actions. 19 e. All property at issue located with the Southern District of California. 20 21 22 23 FACTUAL ALLEGATIONS Ametek’s History 11. In 1953 or 1954, the business located on the El Cajon, California site at 24 790 Greenfield Drive, El Cajon, California 92021 (“the AMETEK PROPERTY”), was 25 founded by California Aircraft Products. In 1964, California Aircraft Products changed 26 27 28 -3COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.5 Page 5 of 29 1 its name to Straza Industries, which was purchased by Defendant AMETEK in 1968.1 12. 2 3 AMETEK used the AMETEK PROPERTY to manufacture aircraft engine parts from 1968 to 1988.2 13. 4 As early as 1988, AMETEK learned it had created a groundwater plume 5 contaminated with chlorinated solvents, including TCE at 39,000 ug/L, as a result of 6 AMETEK’s practice of dumping/storing toxic waste in a redwood sump, which leached 7 and leaked chlorinated solvents, among other chemicals, into the groundwater and 8 subsurface soil at the AMETEK PROPERTY. 9 contaminated groundwater plume had migrated from its property and into the 10 By 1988, AMETEK knew the downgradient groundwater beyond its western property boundary. 14. 11 In late 1988, AMETEK “spun off” a company called Ketema. The “spin 12 off” included the property and business at 790 Greenfield Drive, from which the toxic 13 plume was emanating. 14 which filed for bankruptcy in 2007. Ketema eventually changed its name to Schutte & Koerting, 15 15. Ketema is Ametek spelled backwards. 16 16. Prior to and at the time AMETEK spun off Ketema, AMETEK knew it had 17 contaminated the groundwater with TCE concentrations as high as 39,000 ug/L. 17. 18 Currently, the AMETEK PROPERTY is owned by Senior Operations, 19 LLC, apparently doing business as Senior Aerospace Ketema, which has its principal 20 place of business at 790 Greenfield Drive, El Cajon, California 92021. 18. 21 22 Despite knowledge of groundwater contamination at extremely high levels, AMETEK made a cold, calculated business decision to simply walk away from this 23 24 25 26 27 28 1 California Regional Water Quality Control Board, San Diego Region, Technical Analysis, Administrative Liability Complaint No R9-2008-0033, Issued to Ametek, Inc., Former Ametek/Ketema Aerospace Manufacturing Facility, 790 Greenfield Drive, El Cajon, California, San Diego County, For Violation of Cleanup and Abatement Order No, R9-2002-201, dated September 2008. 2 Id. -4COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.6 Page 6 of 29 1 community without any effort to clean up or remediate the groundwater contamination 2 it had created. 3 AMETEK Dumped Chlorinated Solvents into a Hole in the Ground 19. 4 By at least 1963, but probably as early as 1952, Straza/AMETEK had dug 5 a hole in the ground to dump and/or store its toxic waste. The hole was 12 feet in 6 diameter and 10 feet deep, and was used as a waste “SUMP.”3 20. 7 8 Straza/AMETEK lined the walls of the SUMP with redwood planks and poured concrete at its base. 21. 9 In 1963, Straza/AMETEK submitted a Report of Waste Discharge 10 (ROWD) to the California Regional Water Quality Control Board in order to receive 11 authority and permission to use the SUMP as an impervious storage vessel. AMETEK 12 represented to the Regional Water Quality Control Board that their waste storage 13 facility would “prevent filtering into native soil” in a February 7, 1963 letter.4 22. 14 AMETEK did not reveal the nature or design of the SUMP, excluding the 15 details that the SUMP was lined with redwood planks. It was not until removal of the 16 SUMP, decades later, that the San Diego County Department of Environmental Health 17 discovered and photographed the redwood planks.5 23. 18 19 AMETEK used this SUMP for toxic waste storage and dumping until 1985.6 20 21 22 23 24 25 26 27 28 3 California Regional Water Quality Control Board, San Diego Region, Technical Analysis, Administrative Liability Complaint No R9-2008-0033, Issued to Ametek, Inc., Former Ametek/Ketema Aerospace Manufacturing Facility, 790 Greenfield Drive, El Cajon, California, San Diego County, For Violation of Cleanup and Abatement Order No, R9-2002-201, dated September 2008. 4 Id. 5 Id. 6 Id. -5COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.7 Page 7 of 29 24. 1 For over 22 years, between at least 1963 and 1985, Straza/AMETEK 2 dumped up to 7,000 gallons of waste per month into this SUMP. This dumped waste 3 included7: 4 a. Spent acid and alkaline solutions 5 b. Industrial chlorinated solvents 6 c. 1, 1, 1- Trichloroethane (1, 1, 1- TCA) 7 d. Trichloroethylene (TCE) 8 e. Tetrachloroethylene (PCE) 9 f. Oils 10 g. Paint thinner 11 h. Process Sludge 25. 12 Highly acidic liquid waste, spent chlorinated solvents, and appreciable 13 amounts of various metallic wastes breached the sump and discharged into soil 14 surrounding the sump and into the groundwater, as AMETEK dumped the chlorinated 15 solvent waste into the SUMP until 1985.8 26. 16 Between at least 1963 and at least 1985, the strong, acidic liquid waste 17 deteriorated the SUMP allowing the chlorinated solvent waste to seep and percolate 18 directly into the surrounding soil, fractures in the granite rock, and into the 19 groundwater.9 27. 20 21 the SUMP exceeded 810,000 parts per billion (ppb).10 28. 22 23 In 1987, total chlorinated solvent concentrations in the groundwater near In 2007, total chlorinated solvent concentrations in the groundwater near the SUMP exceeded 48,000 parts per billion (ppb).11 24 25 7 Id. Id. 9 Id. 10 Id. 11 Id. 8 26 27 28 -6COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.8 Page 8 of 29 29. 1 The 1987 and 2007 concentration levels exceed state water quality 2 objectives by unthinkable magnitudes. A chart from the Regional Water Board’s 2008 3 Administrative Liability Complaint illustrates the excessive pollution caused by 4 AMETEK:12 5 6 7 8 9 10 11 12 13 14 One of the Largest TCE Plumes in the State of California 30. 15 16 AMETEK’S waste discharge has caused one of the largest TCE/chlorinated solvent plumes in the State of California.13 31. 17 The chlorinated solvent plume is massive, extending up to 1.3 miles 18 westward and down-gradient. 19 dimensions14: The plume includes the following chemicals and 20 a. TCE: 7,000 feet by 1,600 feet, migrated beneath 257 acres of land 21 b. DCE: 3,200 feet by 1,200 feet, migrated beneath 88 acres of land 22 c. Dioxane: 5,600 by 1,000 feet, extends across 128 acres of land 23 d. TCA: 1,200 feet by 400 feet, extends beneath 11 acres 24 25 26 12 27 13 28 Id. Id. 14 Id. -7COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.9 Page 9 of 29 32. 1 2 Additionally, plumes of PCE, 1,1-DCA, benzene, toluene, ethylbenzene, and xylene exist in the groundwater.15 33. 3 According to AMETEK’S own environmental consultants, Environmental 4 Resources Management (“ERM”), the plume has contaminated the groundwater and 5 soil beneath Magnolia Elementary School, the Greenfield, Starlight and Villa Cajon 6 mobile home parks, and other neighboring properties. 7 Toxic Health Effects 34. 8 9 10 The Agency for Toxic Disease Registry and U.S. Environmental Protection Agency provide information for some of the present in AMETEK’s massive contamination plume16: 11 a. TCE: Affected Organ Systems: Developmental (effects during periods 12 when organs are developing), Neurological (Nervous System); Cancer 13 Classification: 14 Carcinogen; EPA: Carcinogenic to humans; IARC: Carcinogenic to 15 humans (evidence for cancer is based on kidney cancer, limited 16 evidence for non-Hodgkin lymphoma and liver cancer, as well as, 17 various tumors in animals); Chemical Classification: Volatile organic 18 compounds; Summary: Trichloroethylene (TCE) is a nonflammable, 19 colorless liquid with a somewhat sweet odor and a sweet, burning taste. 20 It is used mainly as a solvent to remove grease from metal parts, but it is 21 also an ingredient in adhesives, paint removers, typewriter correction 22 fluids, and spot removers. Trichloroethylene is not thought to occur 23 naturally in the environment. However, it has been found in 24 underground water sources and many surface waters as a result of the 25 manufacture, use, and disposal of the chemical. NTP: Reasonably Anticipated to be a Human 26 27 28 15 16 Id. www.atsdr.cdc.gov -8COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.10 Page 10 of 29 1 b. PCE: Affected Organ Systems: Developmental (effects during periods 2 when organs are developing), Neurological (Nervous System), 3 Respiratory (From the Nose to the Lungs); Cancer Classification: NTP: 4 Reasonably Anticipated to be a Human Carcinogen; Chemical 5 Classification: Volatile 6 Summary: Tetrachloroethylene (PCE) is a manufactured chemical that is 7 widely used for dry cleaning of fabrics and for metal-degreasing. It is 8 also used to make other chemicals and is used in some consumer 9 products. organic compounds; c. TCA: Affected Organ Systems: Cardiovascular (Heart and Blood 10 11 Vessels), Neurological 12 Classification: Volatile 13 Trichloroethane is a synthetic chemical that does not occur naturally in 14 the 15 methyltrichloromethane, trichloromethylmethane, and trichloromethane. environment. It (Nervous organic also is System); compounds; known as Chemical Summary: 1,1,1methylchloroform, 16 d. DCE17: Affected Organ Systems: Short-term: EPA has found 1,1-DCE 17 to potentially cause the following health effects when people are 18 exposed to it at levels above the MCL for relatively short periods of 19 time: liver damage. Long-term: 1,1-DCE has the potential to cause the 20 following effects from a lifetime exposure at levels above the MCL: 21 liver and kidney damage, as well as toxicity to the developing fetus; 22 cancer; Summary: 1,1-DCE will evaporate from soil and will leach into 23 the groundwater where its fate is unknown, but degradation is expected 24 to be slow. Its tendency to accumulate in aquatic life is unknown but 25 expected to be minor. 26 27 28 17 www.epa.gov -9COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.11 Page 11 of 29 1 e. Dioxane: Affected Organ Systems: Hepatic (Liver), Ocular (Eyes), Renal 2 (Urinary System or Kidneys); Cancer Classification: NTP: Reasonably 3 Anticipated to be a Human Carcinogen; Summary: 1,4-Dioxane is a 4 clear liquid that easily dissolves in water. It is used primarily as a 5 solvent in the manufacture of chemicals and as a laboratory reagent; 1,4- 6 dioxane also has various other uses that take advantage of its solvent 7 properties. 8 f. Vinyl Chloride: Affected Organ Systems: Cardiovascular (Heart and 9 Blood Vessels), Developmental (effects during periods when organs are 10 developing), Hepatic (Liver), Immunological (Immune System); Cancer 11 Classification: NTP: Known to be a Human Carcinogen; Chemical 12 Classification: Volatile organic compounds; Summary: Vinyl chloride is 13 a colorless gas. It burns easily and it is not stable at high temperatures. It 14 has a mild, sweet odor. It is a manufactured substance that does not 15 occur naturally. It can be formed when other substances such as 16 Trichloroethane 17 tetrachloroethylene (PCE) are broken down. Vinyl chloride is used to 18 make polyvinyl chloride (PVC). PVC is used to make a variety of plastic 19 products, including pipes, wire and cable coatings, and packaging 20 materials. Vinyl chloride is also known as chloroethene, chloroethylene, 21 and ethylene monochloride. 22 23 (TCA), trichloroethylene (TCE), and Additional/Special Increased Risk to Children and Pregnant Women 35. Young children 10 years and younger, and pregnant women and their 24 unborn babies, are especially susceptible and vulnerable to toxic exposure and associated 25 risk thresholds are higher for children and pregnant women. 26 36. The U.S. Department of Health and Human Services, Agency for Toxic 27 Substances and Disease Registry, published ATSDR Case Studies in Environmental 28 Medicine, Principles of Pediatric Environmental Health- The Child as Susceptible Host: - 10 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.12 Page 12 of 29 1 A Developmental Approach to Pediatric Environmental Medicine, Course: WB2089, 2 which explains: 3 a. “Childhood is a time of rapid growth and development. It is 4 accompanied by changes in organ system functioning, metabolic 5 capabilities, physical size, and behavior that can dramatically modify 6 the effects, the illness, or both caused by toxicant exposure. 7 Pediatricians and other clinicians caring for children need to 8 understand these special susceptibilities.” 9 b. “Children may ingest or inhale dirt or dust contaminated with… 10 environmental toxicants during play or other normal activities. 11 Questions could include exposures to indoor air and outdoor air 12 pollutants and contaminated drinking water and soil.” 13 c. (mg)/day to a maximum of 1,834 mg/day of soil….” 14 15 d. e. f. “Special consideration must be given to toxic exposures during fetal life, infancy, childhood, and adolescence.” 20 21 “Children’s dynamic growth and development puts them at increased risk from environmental toxicants.” 18 19 “Children usually have increased exposures per kilogram of body weight, compared to adults.” 16 17 “Soil intake ranged from a minimal estimate of 108 milligrams g. “Because children grow and develop, they have a higher metabolic 22 rate and thus have a greater need for oxygen….. Children breathe 23 more air… per kilogram of body weight than do adults. These result 24 in greater exposures per kilogram of body weight to any 25 contaminants in the air….” 26 h. “Children have an increased surface area-to-body mass ratio (in 27 infants and young children) resulting in an increased risk of dermal 28 exposure and absorption.” - 11 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.13 Page 13 of 29 i. 1 “Children’s long life expectancy increases their risk of adverse 2 outcomes (e.g., cancer, renal or liver failure, senility) from exposures 3 to those toxicants whose effects are expressed after a long latency 4 period.” j. 5 “The rapid development of organ systems during embryonic, fetal, 6 infant, and early childhood periods make children vulnerable when 7 exposed to environmental toxicants.” k. 8 “Parental exposures before a child is conceived can result in adverse reproductive effects, including Infertility, Spontaneous abortion, and 9 Genetic damage to the fetus, possibly resulting in birth defects.” 10 l. 11 “Exposures to hazardous substances during pregnancy can potentially affect the development of fetal organ systems.” 12 m. 13 “Exposures can cause profound systemic damage out of proportion with the dose response seen in adults.” 14 n. 15 “A fact of fetal life is that the fetus cannot escape transplacental transport of toxicants to which the mother is exposed.” 16 37. 17 The California Regional Water Quality Control Board filed a 2008 18 Administrative Liability Complaint against Defendant AMETEK, INC. for failing to 19 comply with the previous 2002 Cleanup and Abatement Order No. R9-2002-201.18 20 AMETEK, INC. committed the following violations19: 38. 21 22 The California Regional Water Quality Control Board then imposed a fine of $2,269,000 for the above mentioned violations20: a. “$1,671,500 in liability for Failure to Report as Required by Directive 23 No. 1….” 24 25 26 18 27 19 28 Id. Id. 20 Id. - 12 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.14 Page 14 of 29 b. “$597,500 in liability for Failure to Submit a Complete Feasibility Study 1 Report as Required by Directive No. 3….” 2 3 AMETEK’S Water Quality Violations 39. 4 AMETEK was named a “Responsible Party” in Cleanup and Abatement 5 Order 98-11 in 1998 by the California Regional Water Quality Control Board 6 (“CRWQCB”). AMETEK was required, among other things, to fully delineate the 7 plume, submit a Feasibility Study, submit a Remedial Action Plan, and otherwise fully 8 comply with CAO 98-11. 40. 9 AMETEK was again named a “Responsible Party” in Cleanup and 10 Abatement Order 02-201 in 2002 by the CRWQCB. 11 complete delineation of the plume, develop and submit a groundwater management 12 plan, prepare a feasibility study, and submit a groundwater model work plan. 41. 13 14 42. AMETEK and DEENEY choose to not comply with CAO 98-11 or CAO 02-201. 43. 17 18 AMETEK was again named a “Responsible Party” in Cleanup and Abatement Order 02-201 15 16 AMETEK was required to AMETEK and DEENEY knowingly, willfully, and intentionally failed to comply with either CAO 98-11 or CAO 02-201. 44. 19 The California Regional Water Quality Control Board filed a 2008 20 Administrative Liability Complaint against Defendant AMETEK, INC. for failing to 21 comply with the previous 2002 Cleanup and Abatement Order No. R9-2002-201.21 Per 22 the 2008 Administrative Liability Complaint, AMETEK, INC. committed the following 23 violations22: a. 24 Failure to Report as Required by Directive No. 1: “Ametek failed to install and collect ground-water samples in accordance with 25 26 27 28 21 22 Id. Id. - 13 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.15 Page 15 of 29 1 Directive 1.e and failed to submit a complete Delineation Report by 2 April 30, 2003….. the total number of days of violation is 1,974 3 days.” b. 4 Failure to Submit a Complete Feasibility Study Report as Required 5 by Directive No. 3: “Ametek failed to submit a complete Feasibility 6 Study Report by January 16, 2004….. the total number of days of 7 violation is 1,713 days.” 45. 8 9 The 2008 Administrative Liability Complaint, also documented AMETEK’S willful, knowing, and intentional failures as follows23: 10 a. “After 20 years of investigation efforts, Ametek and S&K have not 11 installed a sufficient monitoring well network to delineate the vertical 12 and horizontal extent of the waste plume and have not taken any efforts 13 to cleanup and abate the effects of their discharge.” b. “Ametek and S&K are responsible for delineating and remediating the 14 discharge of wastes.” 15 16 c. “Ametek and S&K were repeatedly advised that their submittals 17 regarding plume delineation were incomplete or deficient, yet they failed 18 to conduct additional work to address the deficiencies.” 19 d. “Ametek and S&K’s failure to completely delineate the plume has 20 allowed significant concentrations of contaminants to remain in place as 21 a continued source of pollution.” 22 e. “Ametek and S&K failed to act appropriately, not only in their efforts to 23 complete the delineation of the plume, but in their responsibilities to 24 implement appropriate cleanup and abatement measures in a reasonable 25 amount of time.” 26 27 28 23 Technical Analysis for Administrative Liability Complaint No. R9-2008-0033, September 2008. - 14 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.16 Page 16 of 29 1 f. “Such failures have caused a condition of pollution and contamination in 2 the ground water beneath the El Cajon Valley with continuing impacts to 3 the existing beneficial uses of the Santee/El Monte Basin.” 46. 4 The CRWQCB sent numerous letters and Notices of Violation (“NOVs”) to 5 AMETEK and DEENEY regarding the lack of compliance with CAO 98-11 and CAO 6 02-201. AMETEK and DEENEY simply ignored the CRWQCB letters and NOVs, 7 allowing the plume to continue to contaminate properties, including causing vapor 8 intrusion into the mobile homes like the ones owned by decedent Arla Cox. 9 Magnolia Elementary School - An Adjacent Property 47. 10 On June 1, 2015, the Board of Governors of the Cajon Valley Union 11 School District voted unanimously to close Magnolia Elementary School, another 12 property located adjacent to the three mobile home parks, for the 2015-2016 school year 13 because the indoor air was contaminated with toxic chemicals emanating from the 14 AMETEK contamination plume. 48. 15 To mitigate the intrusion of TCE vapors into indoor air at Magnolia 16 Elementary School, Cajon Valley Union School District installed sub-slab 17 depressurization systems, designed to remove toxic vapors from underneath classroom 18 buildings. 19 49. 20 In 2008, the Department of Toxic Substances Control (DTSC) entered into a Consent Order with AMETEK, documenting the following24: 21 a. “In June 2007, samples taken from ground water monitoring wells 22 showed concentration of TCE of up to 50,000 micrograms per liter 23 beneath the former Ketema facility, and up to 3,600 micrograms per liter 24 beneath the Site.”25 25 26 27 28 24 Consent Order, Department of Toxic Substances Control, California Environmental Protection Agency, Docket No. HAS-CO 07/08-198, 2008. 25 “Site” means Magnolia Elementary School. - 15 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.17 Page 17 of 29 1 b. “The corresponding modeled indoor air exposure at this level 2 corresponds to a lifetime cancer risk in excess of one-in-ten-thousand 3 (10-4) at the Site. The TCE groundwater plume is impacting the Site.” 4 c. “Soil gas and indoor air quality sampling conducted between July 2004 5 and August 2005 at the Site showed TCE concentrations in the 6 subsurface at up to 130 parts per billion by volume and inside the 7 classrooms at levels up to 1.6 micrograms per cubic meter, as reported in 8 “Results of Soil Vapor and Air Testing” dated May 27, 2005, and the 9 “Results of Indoor Air Sampling” dated August 26, 2005.” d. “Exposure at this level corresponds to a lifetime cancer risk in excess of 10 one-in-a-million (10-6).” 11 50. 12 13 In 2008, the DTSC identified the “Health Effects” of the chlorinated solvents and chemicals AMETEK had dumped into its SUMP26: 14 a. “Volatile Organic Compounds (VOCs) detected at the former Ketema 15 facility and the Site include: 1) benzene, 2) chlorinated solvents, such as 16 TCE, PCE, and 1,1 DCE.” 17 b. “Exposure to such chemicals may occur by inhalation of vapors coming 18 from soil and groundwater, as well as ingestion of, and dermal contact 19 with, VOCs in soil or water.” c. “Potential health effects include cancer, liver and kidney damage, 20 respiratory impairment and central nervous system effects.” 21 51. 22 23 In 2008, the DTSC identified the “Routes of Exposure” of those chlorinated solvents and chemicals27: 24 a. “Certain activities conducted at the former Ketema facility have 25 contaminated soil and groundwater. Because the contaminants found on 26 27 28 26 27 Id. Id. - 16 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.18 Page 18 of 29 1 the former Ketema facility and under the Site include VOCs, an 2 assessment of all exposure routes will be conducted.” b. “The potential routes of exposure include inhalation, ingestion, and 3 dermal contact.” 4 5 52. 6 Risks”28: In 2008, the DTSC also identified the “Public Health and/or Environmental 7 a. “Contaminants have been found in the soil and groundwater at the 8 former Ketema facility and the Site. Risks from these contaminants may 9 be caused by exposure to soil vapor, soils and/or groundwater, through ingestion, inhalation of dusts, and/or vapors, and dermal contact.” 10 b. “The groundwater is relatively shallow at the Site and indoor from 11 groundwater via soil vapor was confirmed at the Site.” 12 53. 13 Since 2012, the DTSC has recommended quarterly monitoring of indoor 14 air quality in classrooms and quarterly monitoring of soil gas at Magnolia Elementary 15 School, located adjacent to Greenfield, Starlight and Villa Cajon, the real property upon 16 which Plaintiff’s mobile home is situated.29 54. 17 In November 2014, the DTSC evaluated indoor air quality test results:30 18 a. “Detection of TCE within one room (Room 8) exceeded the accelerated 19 response action level for residential exposure scenarios (2 ug/m3)….” 20 b. “PCE was detected in indoor air within several rooms, with one 21 detection in Room 19 (3.1 ug/m3) exceeding DTSC’s modified air 22 screening level for industrial exposure scenarios (2.08 ug/m3) and two 23 24 28 25 29 26 27 28 Id. Letter to Mr. James Beard, Cajon Valley School District, from Shahir Haddad, P.E., Supervising Engineer, Department of Toxic Substances Control, November 17, 2014. 30 Id, attached Memorandum, SOIL VAPOR SURVEY AND INDOOR AIR QUALITY ASSESSMENT, From Patrick Kerzic, PhD, DABT, Staff Toxicologist, November 3, 2014. - 17 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.19 Page 19 of 29 1 detections (Rooms 11 and 19) exceeding DTSC’s modified air screening 2 level for residential exposure.” 3 c. “Analysis of several indoor air contaminants (PCE, TCE, 1,1-DCE, 4 1,1,1-TCA, and 1,1-DCA) which likely appear in indoor air due to vapor 5 intrusion and are found in nearby soil vapor wells, using a Schools Risk 6 Screening Model (Schoolscreen, developed by the Office of 7 Environmental Health Hazard Assessment (OEHHA)) indicates that 8 both cancer risks and health hazards to on site staff and students may 9 approach or exceed DTSC’s points of departure for cancer risk (1 in one million excess risk) and hazards (hazard index of 1.0).” 10 55. 11 In November 2014, the DTSC made conclusions and recommendations: 31 12 a. “Recent sampling of indoor and ambient air is consistent with vapor 13 intrusion from contaminants in the subsurface into classrooms at 14 Magnolia Elementary School.” b. “Precautionary actions should be taken to increase ventilation in all 15 classrooms.” 16 17 c. “In order to confirm detections of contaminants within indoor air, an 18 additional round of air sampling should be performed as soon as 19 possible.” d. “HERO 20 (Human and Ecological Risk Office) supports the 21 recommendation of a human health risk assessment for staff and 22 students at Magnolia Elementary School.” 56. 23 24 School, and the results showed a spike in indoor air vapor intrusion. 57. 25 26 In December 2014, indoor air quality was tested at Magnolia Elementary On May 7, 2015, the DTSC held a Community Update Meeting for Magnolia Elementary School, at which several teachers and parents of Magnolia 27 28 31 Id. - 18 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.20 Page 20 of 29 1 students attended. 2 intrusion test results. 58. 3 4 The DTSC interpreted results from the December 2014 vapor As part of the meeting, the DTSC gave a presentation, including the following slides and information32: 59. 5 6 7 8 9 10 11 12 13 14 15 60. 16 17 18 19 20 21 22 23 24 25 26 27 28 32 Presentation at Community Update Meeting for Magnolia Elementary School, Schools Evaluation and Brownfields Outreach, California Department of Toxic Substances Control, May 7, 2015. - 19 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.21 Page 21 of 29 1 61. 2 3 4 5 6 7 8 9 10 11 12 13 14 62. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.22 Page 22 of 29 1 63. The cancer risk for the December 2014 and the March 2015 levels were 2 above the “ACCEPTABLE” range and entering the red zone. The cancer risk for the 3 December 2014 levels were in the red. 4 64. The cancer risk appeared to reach levels 42 times the threshold level which 5 guides the DTSC to take action. 6 Greenfield, Starlight, and Villa Cajon Mobile Home Parks 7 65. Greenfield is a mobile home park located due west of the AMETEK 8 PROPERTY. As such, Greenfield is directly west and down-gradient of the AMETEK 9 SUMP. 10 66. Starlight is a mobile home park located due west-northwest of the 11 AMETEK PROPERTY. As such, Starlight is northwest and down-gradient of the 12 AMETEK SUMP. 13 67. Villa Cajon is a mobile home park located due west-northwest of the 14 AMETEK PROPERTY. As such Villa Cajon is west-northwest and down-gradient of 15 the AMETEK SUMP. Decedent Arla was a resident in the Villa Cajon mobile home 16 park from approximately 1976 until her death in 2001. 17 68. According to AMETEK’s own environmental consultants, ERM, the 18 chlorinated solvent plume, including TCE and other chemicals, flows directly 19 underneath the Greenfield, Starlight, and Villa Cajon mobile home parks (“MHPs”). 20 69. Groundwater Monitoring Wells (MW) have been placed around the mobile 21 home parks: upgradient, downgradient, north, and south of the mobile homes. TCE 22 concentrations sampled from these groundwater MWs assist in identifying the TCE 23 plume underneath the mobile home parks. Below are examples of TCE concentrations 24 surrounding the mobile home parks: 25 26 a. MW-40 in 2016, upgradient of MHPs and adjacent to Starlight: 81,000 ug/L. 27 b. MW-16 in 2011, upgradient of and adjacent to MHPs: 5,600 ug/L. 28 c. MW-18 in 2012, downgradient of MHPs: 1,200 ug/L. - 21 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.23 Page 23 of 29 1 d. MW-46B in 2015, upgradient of and adjacent to MHPs: 9,500 ug/L. 2 e. MW-46C in 2013, upgradient of and adjacent to MHPs: 11,000 ug/L. 70. 3 4 AMETEK’s consultants document groundwater contamination of TCE and other chemicals underneath the Greenfield, Starlight, and Villa Cajon MHPs. 71. 5 TCE and other chlorinated solvent chemicals at and underneath 790 6 Greenfield Drive continue to cause groundwater contamination on a daily basis—the 7 contaminated groundwater flows down-gradient and westward into and beneath the 8 Greenfield, Starlight, and Villa Cajon MHPs. 9 Vapor Intrusion at the Mobile Home Parks 72. 10 Despite the plume’s existence for over 40 years, and despite the existence 11 of a Cleanup and Abatement Order since 1998, the first indoor air and crawl space vapor 12 sampling did not take place at the mobile home parks adjacent to the AMETEK 13 PROPERTY until February 2017, after two related lawsuits were filed. 73. 14 The CRWQCB required AMETEK, as the Responsible Party, to sample the 15 air and crawl space of mobile homes at Greenfield and Starlight MHPs. The positive 16 results from that air sampling became known to Plaintiff in March 2017. This was the 17 first time the mobile homes were tested for vapor intrusion. 74. 18 19 Of 17 mobile homes tested by Ametek, all 17 tested positive for TCE vapor intrusion into the indoor air and crawlspace. 75. 20 The results of the mobile home sampling revealed TCE vapor intrusion into 21 the indoor air and crawl space at levels up to 32 ug/m3 and 29 ug/m3, respectively. 22 These results, in addition to other results, far exceed the California residential screening 23 level of .48 ug/m3, and/or the Accelerated Response Action Level of 2 ug/m3, and/or the 24 Urgent Response Action Level of 6 ug/m3. 76. 25 The California screening level of .48 ug/m3 is calculated as three times the 26 90th percentile of all TCE air tests collected and reported in California in the past five 27 years. 28 77. Thus, TCE vapor intrusion is documented in the indoor air and crawl space - 22 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.24 Page 24 of 29 1 of mobile homes at the mobile home parks. Decedent Arla’s Unit 111 (and her previous 2 Unit 110), was and is situated directly above the same groundwater contamination plume 3 causing this indoor air intrusion. 4 78. Continuous groundwater contamination is occurring and has occurred 5 every day for at least the past 40 years due to a currently constant source of chemicals 6 underneath 790 Greenfield Drive. The current constant source of chemicals underneath 7 790 Greenfield Drive continuously contaminates the groundwater as it passes westward 8 underneath 790 Greenfield Drive property and into and beneath the real property upon 9 which decedent Arla’s mobile home residences were located, causing vapor intrusion 10 11 into decedent Arla’s mobile home crawl space and indoor air. 79. Defendants know and have known that 790 Greenfield Drive, including the 12 subsurface soil, alluvium, decomposed granite, and/or granitic bedrock, are 13 contaminated with TCE and other toxic chemicals. Defendants know and have known 14 that TCE and other toxic chemicals on and beneath 790 Greenfield Drive have been and 15 continue to contaminate the groundwater as it passes through the property’s subsurface 16 soils on underneath the subject mobile home park properties, and despite this 17 knowledge, Defendants have consciously ignored the risk of further contamination and 18 the risk to human health and have chosen not to clean up or remediate the TCE and 19 other toxic chemicals. 20 Direct Harm to Decedent Arla Cox 21 80. Arla Cox is the mother of five children, Plaintiffs Ron, Victor and Adam, 22 and nominal defendants Melody Anne Cole and Stephanie Marie Wilson. Plaintiffs 23 Ron, Victor and Adam were dependent upon their mother for love, care, comfort, 24 society, emotional support, financial support and guidance. 25 81. Arla Cox owned Unit 110 at the Villa Cajon mobile home park starting in 26 approximately 1976. In approximately 1986, Arla Cox sold unit 110 and purchased and 27 moved into Unit 111 with her son, Plaintiff Adam. 28 - 23 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.25 Page 25 of 29 1 2 3 82. Prior to her death in 2001, Arla Cox, a non-smoker, was diagnosed with a kidney tumor, which lead to and was the cause of her death. 83. Plaintiffs are informed and believe that Arla Cox’s mobile home units at 4 Villa Cajon spaces 110 and 111 were both contaminated with vapors, including but not 5 limited to TCE, emanating from the toxic plume created by AMETEK, for the entire 6 duration that she resided in those units. 7 8 84. As of 2001, Arla had lived over the toxic TCE plume created by AMETEK for 36 years. 9 85. Kidney cancer is one of the known effects of toxic exposure to TCE. 10 86. Sadly, Arla Cox died on June 16, 2001, from the kidney tumor she had 11 12 developed. She was 63 years old. 87. Plaintiffs are informed and believe that Arla Cox’s kidney tumor and 13 subsequent death were a direct result of her decades long exposure to toxic TCE vapors 14 emanating from the contamination plume created by Defendants AMETEK and 15 DEENEY. 16 88. Further, as a direct result of AMETEK and DEENEY’s outrageous conduct 17 in, first, creating the toxic plume under Arla’s mobile home units, and, second, overtly 18 and callously refusing to clean up and abate the known contamination, Plaintiffs 19 suffered damages due to the wrongful death of their mother, Arla. 20 89. THOMAS DEENEY, acting within the course and scope of his 21 employment with AMETEK, responsible for decision making and capable of binding 22 AMETEK, did personally and consciously ignore official State of California Cleanup 23 and Abatement Orders, official State of California Notices of Violation, and many 24 letters from the State of California regarding failure to delineate the toxic groundwater 25 plume as a step towards remediation, thereby consciously allowing the plume to 26 continue to grow, thereby causing additional harm. 27 28 90. Despite receiving such Cleanup and Abatement Orders, Notices of Violation and letters regarding AMETEK’s failure to delineate the plume, AMETEK - 24 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.26 Page 26 of 29 1 and DEENEY consciously ignored such correspondence, with knowledge of legal 2 violations and knowledge of a toxic plume, thereby causing additional harm. 91. 3 Despite such knowledge, Defendants consciously ignored the continuous 4 release and contamination of groundwater and vapor intrusion, directly resulting in 5 decedent Arla’s death. 6 DELAYED DISCOVERY AND EQUITABLE TOLLING 92. 7 At all times relevant herein, Defendants concealed relevant facts that 8 would have allowed Plaintiffs to discover the true nature and degree of the waste 9 dumping, groundwater contamination, soil contamination, and vapor intrusion. As a 10 result of these concealments and misrepresentations, equitable tolling of the statute of 11 limitations applies as to the claims asserted by Plaintiffs. Any applicable statute of 12 limitations that might otherwise bar certain of the claims at issue should be tolled 13 because Defendants actively misled Plaintiffs with respect to the true nature, quality, 14 and hazards of use of the waste dumping, groundwater contamination, and vapor 15 intrusion as described herein and above. 93. 16 Plaintiffs exercised due diligence to discover Defendants’ wrongdoing. 17 However, such wrongdoing and/or the full extent and degree of such wrongdoing was 18 not reasonably discoverable prior to the date of the filing of this action and/or prior to 19 two years prior to the filing of this action since Defendants concealed their wrongdoing 20 through misrepresentation, concealment, and failure to disclose. Plaintiffs exercised 21 due diligence by promptly filing this Complaint after discovering the facts giving rise to 22 these claims. 94. 23 Plaintiffs did not discover toxic vapor intrusion at the MHPs until very 24 recently, in March 2017, and certainly within the past two years, only after the 25 California Regional Water Quality Control Board released results of indoor air and 26 crawl space vapor testing, which occurred in February and March 2017. 27 /// 28 /// - 25 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.27 Page 27 of 29 1 FIRST CAUSE OF ACTION 2 Wrongful Death 3 (All Defendants) 95. 4 5 Plaintiffs hereby re-allege and incorporate by reference each and every allegation contained herein above, as if fully set forth in detail herein. 96. 6 Pursuant to California Code of Civil Procedure §377.60, Plaintiffs Ron, 7 Victor and Adam, as the adult living children of decedent Arla, have the right to bring a 8 cause of action for the death of their mother, Arla, caused by the wrongful acts or 9 neglect of another, and can assert that cause herein. 97. 10 As alleged above, Plaintiffs Ron, Victor and Adam were dependent upon 11 their mother for love, care, comfort, society, emotional support, financial support and 12 guidance. 13 98. Plaintiffs Ron, Victor and Adam are informed and believe, and thereon 14 allege, that as a proximate result of the tortious, wrongful, negligent, and/or reckless 15 conduct of Defendants AMETEK, DEENEY, and/or DOES 1-100, and each of them, 16 their mother died on June 16, 2001. Her death was the direct result of the kidney tumor 17 which she developed due to decades long exposure to toxic TCE vapors emanating from 18 Defendants’ contamination plume, and Defendants’ outrageous conduct was a 19 substantial factor in Arla’s death. 99. 20 As a direct and proximate result of the tortious, wrongful, negligent and/or 21 reckless conduct of Defendants AMETEK, DEENEY, and/or DOES 1-100, and each of 22 them, which resulted in the death of Arla, Plaintiffs Ron, Victor and Adam suffered 23 severe loss and are forever deprived of the love, care, comfort, society, emotional 24 support, financial support and guidance of their mother, Arla, in an amount according to 25 proof at trial. 100. As a further proximate result of the conduct of Defendants, and each of 26 27 them, Plaintiffs Ron, Victor and Adam incurred funeral and burial expenses as well. 28 /// - 26 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.28 Page 28 of 29 1 2 3 PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray for judgment against Defendants on all causes of action, and each of them, as follows: 4 1. For compensatory and general damages according to proof; 5 2. For special damages according to proof; 6 3. For costs of suit as permitted by law; 7 4. For attorneys’ fees as permitted by law; 8 5. For all such other and further relief as the Court deems just. 9 10 DATED: June 14, 2017 Respectfully Submitted, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: s/ John P. Fiske John P. Fiske BARON & BUDD, P.C. Scott Summy (pending Pro Hac Vice) (Texas Bar No. 19507500) John P. Fiske (SBN 249256) Celeste Evangelisti (SBN 225232) 603 Coast Hwy, Suite G Solana Beach, California 92075 Telephone: (214) 521-3605 Fiske@BaronBudd.com GOMEZ TRIAL ATTORNEYS John H. Gomez (SBN 171485) Deborah Dixon (SBN 248965) 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 DDixon@GomezTrialAttorneys.com Attorneys for Plaintiffs 27 28 - 27 COMPLAINT FOR DAMAGES Case 3:17-cv-01211-AJB-KSC Document 1 Filed 06/14/17 PageID.29 Page 29 of 29 1 2 3 Trial by Jury Pursuant to the Seventh Amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. 4 5 DATED: June 14, 2017 Respectfully Submitted, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 By: s/ John P. Fiske John P. Fiske BARON & BUDD, P.C. Scott Summy (pending Pro Hac Vice) (Texas Bar No. 19507500) John P. Fiske (SBN 249256) Celeste Evangelisti (SBN 225232) 603 Coast Hwy, Suite G Solana Beach, California 92075 Telephone: (214) 521-3605 Fiske@BaronBudd.com GOMEZ TRIAL ATTORNEYS John H. Gomez (SBN 171485) Deborah Dixon (SBN 248965) 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 DDixon@GomezTrialAttorneys.com Attorneys for Plaintiffs 22 23 24 25 26 27 28 - 28 COMPLAINT FOR DAMAGES