Chesapeake City Water Causesd Miscarriages?

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Virginia high court throws out lawsuit claiming Chesapeake city water caused miscarriages

By LARRY O'DELL
Associated Press Writer

November 5 2004

RICHMOND, Va. -- Virginia's Supreme Court on Friday threw out a lawsuit filed by one of more than 200 women who claimed that drinking contaminated Chesapeake city tap water caused miscarriages or birth defects.

The court cited the doctrine of sovereign immunity, which shields municipalities from liability arising from their exercise of governmental functions. The unanimous ruling reversed a decision by Circuit Judge Norman Olitsky, who had rejected the city's immunity defense.

Helen Cunningham's lawsuit sought $6 million in damages. The ruling in her case effectively nullifies an additional 212 lawsuits seeking nearly $2 billion--more than triple the city's annual $671 million budget.

"The result is that these clients have no recourse," said Gary Bryant, a lawyer for Cunningham and many of the other women. "Regardless of whether they can prove the acts alleged in the complaint, because of this ruling they cannot pursue those claims."

Chesapeake City Attorney Ron Hallman said he is convinced that the city would have won all the lawsuits, "but getting to that point would have been very difficult and expensive and time-consuming. The taxpayers are the ones who would have been paying for it."

Cunningham and the other plaintiffs alleged that city officials misled them about high levels of trihalomethanes, or THMs, in the city's drinking water. Some studies have linked THMs to increased health risks for pregnant women.

THM forms when chlorine mixes with organic material, such as algae and leaf particles, in the water.

The city, which obtains its drinking water from the Northwest River, obtained a temporary exemption from state THM limits while the water treatment plant was being upgraded in 1998. Cunningham suffered a miscarriage during that time.

The city issued warnings about the high THM levels through newspaper ads, notices in water bills and letters to obstetricians, the Supreme Court noted. News reports also focused on the situation.

"Because we find that the city's redesign and planning of the plant and its public information campaign regarding temporary risks associated with consuming city water were governmental functions, sovereign immunity applies to bar Cunningham's claims," Justice G. Steven Agee wrote.

The court rejected Cunningham's claim that the operation of the water works was a "proprietary" function, which means it is not unique to what governments do. The court said upgrading the plant to protect the public's health is clearly a government activity.

The women claimed in their lawsuits that city officials knew about the THM problem when the plant was built in the early 1980s but did not warn the public until 1998. Their lawyers also claimed that residents relied on falsified test results made public by the city.