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Environmental: Cantrell v. Ashland Inc.

12.01.2006

The Firm obtained a special victory for one of the firm’s oldest clients, Ashland Inc., in September with a unanimous decision from the Kentucky Court of Appeals. The long-running dispute involves many parcels of land and more than fifty property owners, all claiming that the presence of naturally occurring radioactive material (NORM), common to oil field production, had harmed their properties. NORM is an invisible, odorless substance that cannot even be detected by human senses, and some of the properties involve questionable testing results. 

A test (or bellwether) case involving three properties (selected by the property owners’ attorneys as presumably their best case) and several property owners was tried in the Johnson Circuit Court in 2003, resulting in a complete defense verdict. Even though there was evidence of “salting” that the jury did not get to hear because it was said to have occurred on a property not involved in the bellwether trial, the jury still found there was no basis for fear that the levels of NORM associated with the oil production had harmed the properties. In a 38-page opinion, the Court of Appeals affirmed the jury verdict in favor of Ashland in its entirety and found that the jury’s decision was supported by substantial evidence. Indeed, Dr. John Frazier, acknowledged by the property owners’ own witnesses to be one of the world’s foremost experts on radiation, testified in person and explained to the jury in painstaking terms the science involved in the case. His testimony dispelled years of unfounded concern in these communities, resulting in the defense verdict by the jury, now affirmed on this appeal. The plaintiffs have asked the Kentucky Supreme Court to review the decision and that motion is still pending as of this writing. 

The trial team for this case included Phillip D. Scott, Anne A. Chesnut, Brian M. Johnson and John F. Billings, Members in our Lexington office; and Cindy K. Wedding, Paralegal in our Lexington office, who also worked with co-counsel from other firms.

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