ST. PAUL — A class action suit filed against Water Gremlin by a White Bear homeowner was dismissed, with prejudice, last week by District Court Judge Leonardo Castro.
The plaintiff, Robert Sharot, filed the suit in October 2020, saying the plant's release of toxic TCE into the air and its widely publicized contamination harmed the value of his property.
The court expressed concern last May with Sharot's ability to prove his claims and granted time to conduct limited discovery on the existence of injury and property damages related to his allegations. But the plaintiff did not conduct discovery specific to his property, as the judge requested.
In the Nov. 12 motion siding with Water Gremlin, the court said Sharot relies mostly on evidence presented by his expert, explaining that the widely publicized TCE pollutant reduced his property value by 3% and made his home "less desirable."
The expert's report included an appraisal of Sharot's property at 1872 Third St. as of Jan. 31, 2019. The judge noted that this was prior to public disclosure of information regarding Water Gremlin emissions of TCE. No appraisal was done after the TCE emission became public.
"The plaintiff provides only a generalization of how an average home in the area may have been affected by the perceptions associated with Water Gremlin's TCE emissions," Judge Castro said. "It is unknown why the plaintiff did not conduct discovery specific to his property."
The judge asked about this at an Oct. 20 hearing with Sharot's counsel. His attorneys insisted they were unable to do so due to the 90-day timeline. The judge wasn't buying it. "The court is not persuaded, and finds the 90-day timeline does not explain away the absence of evidence personal to plaintiff's property," he wrote.
Sharot was represented by Minneapolis attorney Jeffrey Storms and Laura Sheets, a partner in the Detroit law firm of Liddle Sheets Coulson, specialists in class action suits. Water Gremlin was represented by Ben Kappelman and Amy Weisgram, Dorsey & Whitney LLP.
Water Gremlin stopped using TCE as a solvent in its battery terminal manufacturing process in 2019. In 2018, the Minnesota Pollution Control Agency investigated Water Gremlin after the company failed to report accurate emissions data for more than 15 years, violating its permit and exposing surrounding neighborhoods to TCE levels.
Air dispersion models regarding TCE emissions were created by state health and pollution control officials that referred to an "area of concern," which is the geographical area where emissions of the chemical exceeded 2 micrograms per cubic meter of air. Sharot's property is outside the area of concern.
According to the court document, Sharot does not believe his exclusion from the area of concern would change the perception that his home was impacted by Water Gremlin's release of TCE. He also believes every household within the original area of concern shares his beliefs. That area was revised after MPCA received meteorological data it said better represented conditions near the township plant.
Noting that the plaintiffs had produced no evidence that his property was contaminated, the judge asked Sharot's attorneys if any testing had been done on the property to determine whether TCE had "touched" it. Their response was that TCE was not a "forever chemical," and "it doesn't last that long in areas that far away from the Water Gremlin facility."
The court order noted that counsel conceded that Sharot had no proof of actual contamination.
In his affidavit, Sharot stated he no longer enjoys his home and does not trust the land it sits on or the air he breathes. He does not garden because he does not trust the soil and does not walk his dog because of Water Gremlin's conduct.
Judge Castro said the plaintiff has not offered evidence from which a reasonable jury could conclude that the defendant caused either injury to property or unreasonable interference with the enjoyment of his property.
"The court does not dispute that Sharot does not share the same level of comfort in his property as he once did before he learned of the TCE emissions," the judge wrote. "However, his beliefs are insufficient to establish a material and substantial interference. Water Gremlin had stopped emitting TCE before the plaintiff became aware of the emissions."
In a statement to the Press, Water Gremlin President Scott Schulz said, "We are pleased the court found that there was no basis for the claims and dismissed the case."
It should be noted that the fact the case was dismissed with prejudice is significant. That means the plaintiff cannot refile the same claims again in district court.
An email requesting comment from the plaintiff's Detroit attorney did not receive a reply.