`
`Kenneth A. Sansone, SBN 319982
`ksansone@slenvironment.com
`Seth D. Mansergh, SBN 274892
`smansergh@slenvironment.com
`SL ENVIRONMENTAL LAW GROUP, PC
`175 Chestnut Street
`San Francisco, CA 94133
`Telephone: (415) 348-8300
`Facsimile: (415) 348-8333
`
`
`Attorneys for Plaintiffs CITY OF CORONA and
`CORONA UTILITY AUTHORITY
`
`
`
`
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`
`Case No. 5:20-cv-02562
`
`PLAINTIFFS’ COMPLAINT FOR
`DAMAGES AND OTHER RELIEF:
`
`(1) STRICT PRODUCTS LIABILITY
` (DESIGN DEFECT);
`(2) STRICT PRODUCTS LIABILITY
` (FAILURE TO WARN)
`(3) NUISANCE;
`(4) TRESPASS; and
`(5) NEGLIGENCE.
`
`
`WITH DEMAND FOR JURY TRIAL
`
`CITY OF CORONA and
`CORONA UTILITY AUTHORITY,
`
`
`
`Plaintiffs,
`
`
`v.
`
`THE DOW CHEMICAL COMPANY;
`SHELL OIL COMPANY, also doing
`business as SHELL CHEMICAL
`COMPANY; FMC CORPORATION;
`NUTRIEN AG SOLUTIONS, INC.,
`formerly known as CROP
`PRODUCTION SERVICES, INC.;
`and DOES 1 through 300,
`INCLUSIVE,
`
`
`
`Defendants.
`
`
`
`
`
`Plaintiffs the CITY OF CORONA and the CORONA UTILITY AUTHORITY
`
`hereby allege as follows, based on information and belief and investigation of counsel:
`
`
`
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`I. SUMMARY OF THE CASE
`1. Plaintiff the CITY OF CORONA (the “City”) owns, operates, and
`controls a water enterprise that provides drinking and other water to residents,
`businesses and others in and around Corona, California (collectively the “Service
`Area”). City also owns, operates, and controls a wastewater enterprise that provides
`wastewater treatment services within the Service Area. City leases the water
`enterprise and wastewater enterprise (“Water System”) to Plaintiff CORONA
`UTILITY AUTHORITY (the “CUA”), a joint powers authority, duly organized and
`existing under the laws of California. The CUA has contracted with the City to
`appoint and retain the City as the manager and operator of the Water System.
`2. Plaintiffs seek to recover by this action the substantial costs necessary to
`protect the public and restore several of City’s water supply wells, located in Corona,
`California, which are contaminated by the chemical 1,2,3-trichloropropane (“TCP”).
`3. TCP is a highly toxic substance that is an ingredient, component,
`constituent, contaminant and/or impurity in certain commercial products. In years
`past, TCP, and/or products containing TCP, were applied, released, discharged and/or
`disposed of by others in the vicinity of certain drinking water production wells owned
`and operated by City. TCP has migrated through the subsurface and into the
`groundwater, and now contaminates the water pumped from City’s wells. Because of
`the risks that TCP poses to human health, the State of California has banned TCP in
`drinking water except at very low levels.
`4. The defendants in this action are the manufacturers, distributors and
`releasers of the TCP and/or TCP-containing products that caused the contamination of
`City’s wells. Among other things, the manufacturer defendants knowingly and
`willfully manufactured, promoted, and sold TCP and products containing TCP, when
`they knew or reasonably should have known that this harmful compound would reach
`groundwater, pollute drinking water supplies, render drinking water unusable and
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`unsafe, and threaten the public health and welfare, as it has done with respect to City’s
`water supply.
`5. Plaintiffs file this lawsuit to recover compensatory and all other damages,
`including all necessary funds to compensate Plaintiffs for the costs of designing,
`constructing, installing, operating and maintaining the treatment facilities and
`equipment required to comply with state and federal safe drinking water laws and to
`remove TCP from its water supply, and to ensure that the responsible parties bear such
`expense, rather than Plaintiffs and their ratepayers.
`II. THE PARTIES
`6. City is a California municipality. City owns and operates a water system
`for the benefit of the public, which includes, among other elements, drinking water
`production wells which draw from one or more groundwater aquifers, associated
`pumping, storage, treatment and distribution facilities and equipment, all of which
`will be referred to collectively in this Complaint as Plaintiffs’ “Water System.” City
`provides potable water through its Water System to residents and businesses in and
`around the Service Area. Among other things, City’s Water System includes the right
`of City to extract and use groundwater for drinking water supplies from its wells. City
`has a significant property interest in the waters it extracts and uses from its wells. The
`past, present and continuing contamination of such waters by TCP constitutes physical
`injury to such waters for which City is entitled to, and City hereby does, seek damages
`and other appropriate relief.
`7. The following defendants designed, manufactured, formulated, marketed,
`promoted, distributed, sold (directly or indirectly), applied, discharged, disposed of
`and/or released the TCP and/or products containing the TCP that contaminates City’s
`wells and water supply:
`8. Defendant THE DOW CHEMICAL COMPANY (“Dow Chemical”) is a
`Delaware corporation with its principal place of business in Midland, Michigan,
`which at all times relevant to this action was doing business in California.
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`9. Defendant SHELL OIL COMPANY, individually and doing business as
`SHELL CHEMICAL COMPANY (“Shell”) is a Delaware corporation with its
`principal place of business in Houston, Texas, which at all times relevant to this action
`was doing business in California.
`10. Defendant FMC CORPORATION (“FMC”) is a Delaware corporation
`with its principal place of business in Philadelphia, Pennsylvania, which at all times
`relevant to this action was doing business in California.
`11. Defendant NUTRIEN AG SOLUTIONS, INC., formerly known as
`CROP PRODUCTION SERVICES, INC., itself and as successor-in-interest to
`Western Farm Service, Inc. (formerly known as Cascade Farm Services, Inc.) and to
`UAP Distribution, Inc. (also doing business as United Agri Products West, UAP
`West, and United Agri Products, and as successor in interest to United Agri Products
`Financial Services, Inc.) (“Nutrien”) is a Delaware corporation with its principal place
`of business in Loveland, Colorado, which at all times relevant to this action was doing
`business in California.
`12. The names and capacities, whether individual, corporate or otherwise, of
`defendants named herein as DOES 1 through 300, inclusive, are unknown at this time
`to Plaintiffs who therefore sue said defendants by such fictitious names. Plaintiffs
`will amend the Complaint to show the true names and capacities of said defendants if
`and when their identities and capacities have been ascertained.
`13. The defendants named in paragraphs 8-11 above and defendant DOES 1
`through 300, inclusive, are referred to collectively herein as “Defendants.”
`14. Defendants Dow and Shell and DOES 1 through 100, inclusive, are
`referred to collectively herein as “Manufacturer Defendants.”
`15. Defendants FMC and Nutrien and DOES 101 through 200, inclusive, are
`referred to collectively herein as “Distributor Defendants.”
`16. DOES 201 through 300, inclusive, are referred to collectively herein as
`“Owner/Operator Defendants.”
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`17. When reference is made in this Complaint to any act or omission of any
`of the Defendants, it shall be deemed that the officers, directors, agents, employees or
`representatives of the Defendants committed or authorized such act or omission, or
`failed to adequately supervise or properly control or direct their employees while
`engaged in the management, direction, operation or control of the affairs of
`Defendants, and did so while acting within the scope of their duties, employment or
`agency.
`
`III. JURISDICTION AND VENUE
`18. This court has jurisdiction over this matter because Plaintiffs are citizens
`of a different state from each of the defendants and the amount in controversy, in
`
`excess of interest and costs, exceeds $75,000.
`19. This Court has jurisdiction over Defendants because, based on
`information and belief, each is a corporation or other business that has sufficient
`minimum contacts in California or otherwise intentionally avails or availed itself of
`the California market either through the distribution or sale of products containing
`TCP in the State of California or by having a manufacturing, distribution or other
`facility located in California so as to render the exercise of jurisdiction over it by
`courts in this state consistent with traditional notions of fair play and substantial
`justice.
`20. Venue is proper in this district because a substantial part of the events or
`omissions giving rise to the claims occurred in this district, and because the property
`that is the subject of the action is situated in this district.
`IV. ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION
`The Contaminant: TCP.
`21.
` TCP does not occur naturally. Rather, TCP is and/or was produced as a
`byproduct of certain chemical processes used to produce allyl chloride,
`epichlorohydrin and synthetic glycerin, which, in turn, are and/or were used in
`connection with the manufacture of certain commercial products. TCP is also known
`
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`as allyl trichloride, glycerol trichlorohydrin, and/or trichlorohydrin. Because only
`certain large-scale industrial chemical processes involving heat and chlorine produce
`TCP, only a few companies in the United States are the source of TCP.
`22. TCP is and/or was, among other things, an inert ingredient, impurity
`and/or manufacturing byproduct in certain soil fumigant products used to control
`nematodes (microscopic worms that infest plant roots) that were marketed primarily,
`although not exclusively, from the 1940s through the 1980s. The TCP present in
`TCP-containing soil fumigants had, and has, no beneficial purpose in connection with
`the application of such soil fumigants to crops.
`23. TCP is and/or was contained in certain other non-agricultural chemical
`products, including, but not limited to, some solvents and extractive agents.
`24. TCP has unique characteristics that cause extensive environmental
`contamination and a corresponding threat to the public health and welfare. In
`particular, TCP does not readily adsorb (i.e., stick) to soil particles. Rather, once TCP
`is applied, discharged, disposed of, or otherwise released into or onto land, it is readily
`transported through the subsurface and into groundwater. In addition, TCP is known
`to be persistent, i.e., it does not readily biodegrade or chemically degrade naturally in
`the subsurface. There is a lengthy delay, based on site-specific factors, between the
`time TCP or products containing TCP are released into the subsurface environment
`and the time TCP accumulates in groundwater in sufficient quantities and locations to
`contaminate public drinking water resources. In short, TCP migrates readily through
`soil and groundwater, resists natural degradation, and is difficult and costly to remove
`from groundwater.
`25. TCP presents a significant threat to public health and welfare. TCP is
`known to cause liver and kidney damage and blood disorders in animals exposed to
`TCP via ingestion. TCP has also been shown to cause cancer in animals, and is
`known to the State of California to cause cancer for purposes of the Safe Drinking
`Water and Toxic Enforcement Act of 1986.
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`B. Regulatory Standards Applicable To TCP.
`26. No federal or state agency has approved TCP as an additive to drinking
`water. No federal or state agency has approved releasing or discharging TCP to
`groundwater.
`27. The Division of Drinking Water (“DDW”) of the California State Water
`Resources Control Board (“SWRCB”), formerly part of the California Department of
`Public Health (“DPH”), is the state agency responsible for regulating public water
`systems, including Plaintiffs’ Water System.
`28.
` At the request of DPH, the California Office of Environmental Health
`Hazard Assessment finalized a Public Health Goal (“PHG”) for TCP in drinking water
`of 0.0000007 mg/L, or 0.7 parts per trillion. PHGs for carcinogens or other
`substances that may cause chronic disease are based solely on health effects and are
`set at the level at which the State has determined, based on the best available
`toxicological data in the scientific literature, the substance does not pose any
`significant risk to health.
`29. The SWRCB adopted a Maximum Contaminant Level (“MCL”) for TCP
`in drinking water in the amount of 0.000005 mg/L, or 5 parts per trillion. An MCL is
`a legal standard that establishes the maximum permissible level of a contaminant in
`drinking water. City, as the owner and operator of the Water System, is required to
`comply with the MCL for TCP.
`C.
`The Manufacturer Defendants’ Knowledge of TCP’s Hazards.
`30. The Manufacturer Defendants, each of whom has promoted the use of
`TCP and/or products containing TCP (collectively referred to hereinafter as “TCP
`Products”), knew or should have known of the grave harm and threat to public health
`and welfare and the environment represented by proliferating use of this compound,
`including (among other things): widespread pollution of groundwater with TCP,
`contamination of public and private drinking water supplies by this harmful
`compound, drinking water supplies being rendered unfit and unusable for
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`consumption and increased costs to public water suppliers and their customers.
`31. The manufacturers of TCP Products had a duty—and breached their
`duty—to evaluate and test such Products adequately and thoroughly to determine their
`environmental fate and transport characteristics and potential human health and
`environmental impacts before they produced and sold such Products. They also had a
`duty—and breached their duty—to minimize the environmental harm caused by TCP.
`The Manufacturer Defendants, and each of them, failed to adequately evaluate and test
`their TCP Products, or otherwise ensure that TCP would not contaminate drinking
`water. As a direct, indirect and proximate result of these failures, TCP contaminated,
`and continues to contaminate, the drinking water supply of Plaintiffs’ Water System.
`32. At all times relevant to this action, the Manufacturer Defendants knew, or
`reasonably should have known, among other things, that: (a) TCP is toxic; and (b)
`when applied, discharged, disposed of, or otherwise released into or onto land, TCP
`readily migrates through the subsurface, mixes easily with groundwater, resists natural
`degradation, renders drinking water unsafe and/or non-potable, and requires
`significant expenditures to remove from public drinking water supplies.
`33. Despite knowing or having reason to know that long-term groundwater
`contamination, pollution of water supplies, and threats to public health and safety
`were inevitable consequences of the foreseeable and intended uses of their TCP
`Products without proper precautionary measures, including but not limited to adequate
`warnings, the Manufacturer Defendants nonetheless promoted, marketed and/or sold
`TCP Products in California and elsewhere.
`34. At all times relevant herein, the Manufacturer Defendants, and each of
`them, knew or should have known that feasible measures could have been
`implemented to remove or substantially reduce the amount of TCP in their finished
`TCP-containing soil fumigant products without decreasing the ability of these
`products to control nematodes, but they failed to implement such measures.
`35. At all times relevant herein, the Manufacturer Defendants, and each of
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`them, knew or should have known that TCP is a hazardous waste which should be
`disposed of safely and separately from non-hazardous wastes. Nonetheless, the
`Manufacturer Defendants caused or allowed TCP – a hazardous waste product created
`by their chemical manufacturing processes – to be included in their products,
`including soil fumigant products. The Manufacturer Defendants then instructed users
`to apply products containing TCP to agricultural fields, where these Defendants knew
`or should have known that TCP would contaminate groundwater.
`36. Adequate warnings regarding the known and foreseeable risks of TCP
`could have prevented or mitigated the contamination and resulting damages alleged
`herein. Despite knowing or having reason to know of the risks to public drinking
`water resources posed by the discharge, disposal or release into or onto land of TCP
`Products, the Manufacturer Defendants unreasonably failed to provide any adequate
`warnings regarding the known and foreseeable risks of TCP to customers, end-users,
`regulators, public officials and/or the public, including Plaintiffs.
`37.
`In addition to the negligent and/or reckless conduct alleged herein, the
`Manufacturer Defendants, by agreement and/or tacit understanding among them, each
`knowingly pursued or took an active part in a common plan, design and/or conspiracy
`to market and/or promote products they knew to be dangerous to the environment. In
`particular, these Defendants engaged in joint activity for the specific purpose of
`suppressing, concealing, and/or minimizing information regarding the toxicity and
`persistence of TCP. These Defendants’ common plan, design and/or conspiracy, and
`the acts taken in furtherance of such common plan, design and/or conspiracy, are a
`direct and proximate cause of the TCP contamination in Plaintiffs’ Water System.
`D.
`The Impact of TCP on Plaintiffs’ Water System.
`38. TCP has been detected in varying amounts at varying times in water
`extracted from certain of City’s wells located in the Service Area, (referred to herein
`as the “Contaminated Wells”). TCP has been detected and/or is present in the
`Contaminated Wells at levels substantially above the applicable MCL. The detection
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`E.
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`and/or presence of TCP, and the threat of further detection and/or presence of TCP, in
`the Contaminated Wells in varying amounts and at varying times has resulted in, and
`will continue to cause, significant injuries and damages to the Contaminated Wells
`and Plaintiffs’ Water System.
`39. The injuries to City caused by Defendants’ conduct as alleged herein
`constitute an unreasonable interference with, and physical damage to, the limited
`subterranean supplies of fresh drinking water on which City’s Contaminated Wells
`depend. City’s interest in protecting the quality of its limited drinking water supplies
`constitutes a reason personal for seeking damages sufficient to restore such drinking
`water supplies to their pre-contamination condition.
`
`Summary of Allegations.
`40. At all times relevant to this action:
`(a) The Manufacturer and Distributor Defendants, and each of them,
`sold, exchanged, supplied, distributed, delivered or otherwise
`provided (directly or indirectly) TCP Products to the
`Owner/Operator Defendants. Such sales, exchanges, supplies,
`distributions, deliveries and/or other provisions of TCP Products to
`the Owner/Operator Defendants occurred over time.
`(b) TCP Products purchased or otherwise acquired (directly or
`indirectly) from the Manufacturer and/or Distributor Defendants,
`and each of them, by the Owner/Operator Defendants were
`applied, discharged, disposed of or otherwise released into or onto
`lands in the vicinity of City’s Contaminated Wells. Such
`applications, discharges, disposals and/or releases of TCP occurred
`at various times, in varying quantities and in different locations.
`(c) TCP takes time to migrate from points of application, discharge,
`disposal and/or release to locations within the subsurface at which
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`it has an appreciable impact on groundwater. TCP has over time
`migrated in the subsurface from various application, discharge,
`disposal and/or release points at or near the surface on lands in the
`vicinity of City’s Contaminated Wells, causing pollution,
`contamination, and substantial and continuing damage to those
`Wells and the groundwaters that supply them, causing appreciable
`injury to Plaintiffs and damaging Plaintiffs at such times and in
`amounts to be proved at trial.
`41. At all times relevant to this action, TCP Products manufactured, sold,
`and/or released by Defendants caused and/or contributed to the TCP contamination
`alleged herein.
`42. At all times relevant to this action, the TCP Products purchased or
`otherwise acquired by the Owner/Operator Defendants were TCP Products
`manufactured, marketed, distributed and/or sold by one or more of the Manufacturer
`and Distributor Defendants named herein.
`43. Defendants, and each of them, are jointly and severally liable for the
`damages alleged herein.
`
`FIRST CAUSE OF ACTION
`(Strict Products Liability Based On Defective Design
`Against The Manufacturer and Distributor Defendants)
`
`44. Plaintiffs reallege each of the preceding paragraphs, and by this reference
`incorporates each such paragraph as though set forth in full.
`45. The Manufacturer and Distributor Defendants, and each of them,
`designed, manufactured, formulated, promoted, marketed, distributed, and/or sold
`TCP Products.
`46. The Manufacturer and Distributor Defendants, and each of them, knew
`and/or should have known that such TCP Products were to be purchased and used
`without inspection for defects.
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`47. TCP Products purchased or otherwise acquired (directly or indirectly)
`from the Manufacturer and/or Distributor Defendants, and each of them, by the
`Owner/Operator Defendants were applied, discharged, disposed of or otherwise
`released into or onto lands in the vicinity of City’s Contaminated Wells.
`48. The TCP Products purchased by the Owner/Operator Defendants were
`used in a reasonably foreseeable manner and without substantial change in the
`condition of such Products.
`49. Soil fumigant products containing TCP are, and at all relevant times
`were, designed to be applied, injected and/or released directly into soil. Leaks, spills
`and releases of soil fumigant products containing TCP were also inherent in the
`normal, foreseeable uses of such products, including the transportation, loading,
`unloading, storage, handling, and application of such products.
`50. The Manufacturer and Distributor Defendants knew, or should have
`known, that use of TCP Products other than soil fumigants in their intended manner
`would result in the spillage, discharge, disposal or release of TCP into or onto land.
`51. The TCP Products used in the vicinity of City’s Contaminated Wells
`were defective in design and unreasonably dangerous products because, among other
`things:
`
`(a) The TCP contained in soil fumigant products containing TCP
`served no beneficial purpose.
`(b) TCP causes extensive groundwater contamination when it, or
`products containing it, are used in their foreseeable and intended
`manner.
`(c) TCP poses significant threats to the public health and welfare and
`the environment.
`(d) Defendants failed to conduct reasonable, appropriate or adequate
`scientific studies to evaluate the environmental fate and transport
`and potential human health effects of TCP.
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`52. At all times relevant to this action, TCP Products were dangerous to an
`extent beyond that which would be contemplated by the ordinary consumer, and/or the
`benefit of the presence of TCP in TCP products, if any, did not outweigh the risk of
`harm to public health and welfare and the environment posed by the presence of TCP
`in TCP Products.
`53. As a direct and proximate result of the defects previously described,
`City’s Contaminated Wells and the groundwaters that supply them have been, and
`continue to be, contaminated with TCP, causing physical damage to such
`groundwaters and causing Plaintiffs significant injury and property damage.
`Restoration, repair and/or remediation of the property damage alleged herein has
`required Plaintiffs, and will continue to require Plaintiffs, to incur substantial costs
`and expenses in an amount to be proved at trial.
`54. The Manufacturer and Distributor Defendants are strictly, jointly and
`severally liable for all such damages, and Plaintiffs are entitled to recover all such
`damages in this action.
`55. The Manufacturer Defendants knew and/or should have known that it
`was substantially certain that their alleged acts and omissions described above would
`cause injury and damage, including TCP contamination of drinking water supplies.
`The Manufacturer Defendants committed each of the above-described acts and
`omissions knowingly, willfully, and with oppression, fraud, and/or malice. Such
`conduct is reprehensible, despicable, and was performed to promote sales of TCP
`Products and maximize profits, in conscious disregard of the probable dangerous
`consequences of that conduct and its foreseeable impact upon health, property and the
`environment, including City’s Water System. Therefore, Plaintiffs request an award
`of exemplary damages in an amount that is sufficient to punish these Defendants and
`that fairly reflects the aggravating circumstances alleged herein. After the completion
`of additional investigation and discovery, Plaintiffs may seek leave of court to amend
`this Complaint to allege a claim for exemplary damages against additional defendants
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`if warranted by the facts.
`
`WHEREFORE, Plaintiffs pray for judgment against Defendants as set forth
`hereafter.
`
`
`SECOND CAUSE OF ACTION
`(Strict Products Liability Based On Failure To Warn
`Against The Manufacturer And Distributor Defendants)
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`56. Plaintiffs reallege each of the preceding paragraphs, and by this reference
`incorporates each such paragraph as though set forth in full.
`57. The Manufacturer and Distributor Defendants, and each of them,
`designed, manufactured, formulated, promoted, marketed, distributed, and/or sold
`TCP Products.
`58. The Manufacturer and Distributor Defendants, and each of them, knew
`and/or should have known that such TCP Products were to be purchased and used
`without inspection for defects.
`59. TCP Products purchased or otherwise acquired (directly or indirectly)
`from the Manufacturer and/or Distributor Defendants, and each of them, by the
`Owner/Operator Defendants were applied, discharged and/or disposed of in or
`otherwise released into or onto lands in the vicinity of City’s Contaminated Wells.
`60. The TCP Products purchased by the Owner/Operator Defendants were
`used in a reasonably foreseeable manner and without substantial change in the
`condition of such products.
`61. Soil fumigant products containing TCP are, and at all relevant times
`were, designed to be applied, injected and/or released directly into soil. Leaks, spills
`and releases of soil fumigant products containing TCP were also inherent in the
`normal, foreseeable uses of such products, including the transportation, loading,
`unloading, storage, handling, and application of such products.
`62. The Manufacturer and Distributor Defendants knew, or should have
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`PLAINTIFFS’ COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`known, that use of TCP Products other than soil fumigants in their intended manner
`would result in the spillage, discharge, disposal or release of TCP into or onto land.
`63. The TCP Products used in the vicinity of City’s Contaminated Wells
`were defective in design and unreasonably dangerous products for the reasons set
`forth in Paragraph 48 above, among other things.
`64. Despite the known and/or foreseeable environmental and human health
`hazards associated with the application or release of TCP Products in the vicinity of
`subterranean drinking water supplies, including contamination of public drinking
`water supplies with TCP, the Manufacturer and Distributor Defendants, and each of
`them, failed to provide adequate warnings of, or take any other precautionary
`measures to mitigate, those hazards.
`65.
`In particular, the Manufacturer and Distributor Defendants failed to
`describe such hazards or provide any precautionary statements regarding such hazards
`in the labeling of their TCP Products or otherwise.
`66. As a direct and proximate result of the Manufacturer and Distributor
`Defendants’ failure to warn of the hazards posed by application or release of TCP
`Products in the vicinity of subterranean drinking water supplies that were, or should
`have been, known to them, City’s Contaminated Wells and the groundwaters that
`supply them have been, and continue to be, contaminated with TCP, causing physical
`damage to such groundwaters and causing Plaintiffs significant injury and property
`damage. Restoration, repair and/or remediation of the property damage alleged herein
`has required Plaintiffs, and will continue to require Plaintiffs, to incur substantial costs
`and expenses in an amount to be proved at trial.
`67. The Manufacturer and Distributor Defendants are strictly, jointly and
`severally liable for all such damages, and Plaintiffs are entitled to recover all such
`damages in this action.
`68. For the reasons set forth and specifically alleged in Paragraph 51,
`Plaintiffs are entitled to an award of exemplary damages against the Manufacturer
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`PLAINTIFFS’ COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`Defendants that is sufficient to punish these Defendants and that fairly reflects the
`aggravating circumstances alleged herein. After the completion of additional
`investigation and discovery, Plaintiffs may seek leave of court to amend this
`Complaint to allege a claim for exemplary damages against additional defendants if
`warranted by the facts.
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`WHEREFORE, Plaintiffs pray for judgment against Defendants as set forth
`hereafter.
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`THIRD CAUSE OF ACTION
`(Continuing Nuisance Against All Defendants)
`69.
` Plaintiffs reallege each of the preceding paragraphs, and by this
`reference incorporates each such paragraph as though set forth in full.
`70. City is the owner of land, easements and water rights which permit it to
`extract groundwater for use in its Water System.
`71. The negligent, reckless, intentional and/or ultra-hazardous activity of
`Defendants, and each of them, as alleged herein, has resulted in the continuing
`contamination of City’s Contaminated Wells and the groundwaters that supply them
`by TCP, and constitutes a nuisance. Each such Defendant has caused, maintained,
`assisted and/or participated in such nuisance, and is a substantial contributor to such
`nuisance.
`72. The nuisance caused, contributed to, maintained, assisted and/or
`participated in by Defendants, and each of them, has caused substantial injury to
`City’s Contaminated Wells and the groundwate