Jul 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-56092. Appeal from the United States District Court for the Southern District of California. Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child's residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted "reasonably" and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because the "discretionary function" exception to tort liability of the United States applies in this case. In a partially split decision, the Appeals Court reversed and remanded for further proceedings.
The majority opinion concluded, "Because the district court erred in holding that the "discretionary function" exception barred the Navy's liability on and the court's subject matter jurisdiction over Myers's claim, and clearly erred in finding that the Navy acted "reasonably" and not in breach of its duty in conducting the remediation of contaminated soil in the project at issue here, we reverse and remand this action for further proceedings. Nevertheless, we find it unnecessary to reassign the case to a different judge on remand."
In a partial concurrence and partial dissent on Justice indicated, "I concur in that portion of the majority opinion concluding that additional factfinding is warranted. However, I would remand the case to the district court for that additional factfinding rather than direct a verdict for Plaintiffs as the majority has done. I also agree that there is no need to assign the case to a different judge on remand. . . I respectfully dissent from the balance of the majority opinion.
Access the complete opinion and partial dissent (click here). [*Toxics, #CA9]
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