Delaware Court Denies Defendants’ Motion to Dismiss Birth Defects Lawsuit Arising out of Power Company's Unlawful Dumping of Toxic Coal Ash Waste

Birth defects lawsuit brought by Dominican families in Delaware Superior Court against a US-based power company, for allegedly dumping toxic coal ash waste onto a beach in the Dominican Republic, is set to proceed to trial after the defendants' motion to dismiss the case was denied.

WILMINGTON, Delaware, July 25, 2011 - The Delaware Superior Court Judge Jan Jurden denies defendants' motion to dismiss in Pallano et al. v. AES Corp. et al, where birth defect attorneys from Levy Phillips & Konigsberg, LLP, represent families whose children suffer from severe birth defects, including missing limbs, intestinal malformations, and brain injuries, which were claimed to be caused by the defendants’ unlawful dumping of toxic coal ash waste onto a beach in the Dominican Republic.

This action, filed in November 2009, was brought against the power company AES Corporation and four of its wholly owned subsidiaries, who were responsible for the coal ash waste.

According to the complaint, prior to October 2003, the defendants constructed a coal-fired power plant in Guayama, Puerto Rico. Recognizing the grave health hazards it posed, Puerto Rican officials required the defendants to dispose of the coal ash waste outside of Puerto Rico. The complaint further alleges that in order to avoid the high costs of proper disposal, the defendants decided to dump thousands of tons of coal ash waste at the Arroyo Barril port in the Samaná Province, near the plaintiffs’ homes and workplaces, between October 2003 and March 2004.
 
Coal ash waste contains arsenic, cadmium, nickel, beryllium, chromium, lead, mercury and vanadium, substances which are well known causes of birth defects and other adverse reproductive outcomes. They include cancer of the lung, kidney, bladder and skin, and respiratory illnesses. Nonetheless, the defendants assured residents and Dominican government officials that coal ash waste was not a harmful substance, and could even be considered a beneficial product to be used as construction material. Plaintiffs claim that the defendants’ misrepresentations sought to lull them together with other citizens of Samaná into thinking that they were not at risk.

A team of birth defect attorneys led by Levy Phillips & Konigsberg, LLP, seeks damages and medical monitoring on behalf of the families whose children have sustained severe birth defects due to this egregious misconduct.

Hoping to avoid a trial on the merits, the defendants attempted to have the plaintiffs’ lawsuit dismissed as time-barred. The defendants argued that the plaintiffs were required to bring lawsuit within six months to one year of the youngsters’ births to avoid dismissal. They made that claim even though the defendants took active steps to conceal the dangers of coal ash waste from the nearby populations, preventing families from learning who was responsible for their children’s birth defects.

Following an oral argument by a birth defect lawyer from Levy Phillips & Konigsberg, LLP, the Honorable Jan Jurden issued a decision rejecting the defendants’ claim that the plaintiffs’ claims were time-barred. Applying the law of the Dominican Republic, the Court recognized that the plaintiffs could not be expected to bring lawsuits when they were “blamelessly ignorant” of the fact that the defendants’ misconduct caused their injuries.

In reaching that conclusion, the trial court referenced the plaintiffs’ level of education, the health care available to them, and their limited access to scientific and technological libraries and databases. Judge Jurden also took into account the report of a court-appointed expert, who offered guidance as to relevant principles of Dominican law.

This favorable ruling by the Delaware Superior Court allows the plaintiffs to progress towards trial, where they will seek justice for the innocent victims of alleged corporate misconduct.

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