Suit against diesel engine makers dismissed; Ruling: Group did not provide scientific evidence that public faces significant cancer risk from exhaust, judge says

By Marla Cone, Times environmental writer
Copyright 1998 Los Angeles Times
August 26, 1998

Ruling that environmental advocates failed to prove that the public faces a significant cancer risk from breathing diesel exhaust, a state judge in San Francisco has dismissed a major lawsuit against companies that manufacture engines.

The judge threw out the case because the group that filed suit, the Corporation for Clean Air, did not provide scientifically valid evidence proving its claim against Navistar International, General Motors, Ford, Chrysler and five other corporations.

"I see absolutely no admissible evidence in this case . . . that would create a triable issue of fact, just on the question of whether or not there is significant risk," Superior Court Judge David A. Garcia said at a hearing last week, according to a court transcript. Garcia is expected to issue a formal ruling shortly.

The dismissal of the case comes as the California Air Resources Board is on the verge of a politically charged decision to identify diesel fumes as a cancer-causing air pollutant. The court ruling, however, is likely to have little impact on the air board's decision, which is expected Thursday, because the judge's ruling involved a different set of legal issues than those faced by the air board.

Scientists advising the air board say several dozen studies show that workers exposed to diesel exhaust face a high incidence of lung cancer.

Environmentalists Tuesday gathered in Boyle Heights--where four freeways heavily traveled by trucks intersect--to urge the board to adopt strong standards for reducing emissions from trucks and other engines.

Speaking in front of a picture of blackened lungs, the activists and community leaders said children at three schools around Soto and 7th streets are exposed to dangerous levels of the exhaust.

"The only barrier between these kids and the soot is a pathetic row of trees. A few trees cannot filter the pollution from thousands of spewing trucks. We need cleaner trucks," said Randy Jurado Ertll of the California League of Conservation Voters.

The case Garcia dismissed was filed under Proposition 65, California's landmark anti-toxics law that allows citizens to sue businesses that expose people to carcinogens without "giving clear and reasonable warning" of the danger.

Under Proposition 65, people must face a certain level of risk--based on an estimated number of cancer cases--before businesses must comply.

But the environmental group's estimate of the risk to the public from breathing diesel fumes was not scientifically valid, Garcia said.

The judge did not say that diesel poses no cancer danger. Instead, he said he was not convinced that the risk reaches the level required under Proposition 65. The risk is uncertain because of the difficulties in estimating people's exposure to diesel.

He also said engine manufacturers have no duty to warn the public rather than just the buyers of the equipment.

"I find here no duty by these manufacturers to the general consuming public," Garcia told lawyers for the environmental group.

Engine makers might have a duty to notify people who buy their products, "but even as to buyers, I see no significant evidence," he said.

The two experts the group used to quantify the cancer risk do not "even begin to meet scientific tests for admissibility," he said.

"We're very pleased with the ruling and we're not surprised by it at all," said William Bunn, Navistar's medical director. "The plaintiff's experts did not meet the standards of good science."

David Winton, attorney for Corporation for Clean Air, was unavailable for comment Tuesday, but at last week's hearing, he said the judge was wrong about the scientific evidence and he indicated that he would appeal.

Exhaust from diesel engines contains tiny soot particles and about 40 compounds such as benzene that are believed to cause cancer.

The Air Resources Board and state environmental health officials have spent nine years weighing the health risks.

Fearing that a decision by the air board to list diesel exhaust as a toxic air contaminant would prompt more lawsuits, business leaders have mounted an intense political and scientific campaign to keep the air board from acting.

Timothy French, an attorney for the Engine Manufacturers Assn., said businesses have received more than 200 notices from potential plaintiffs who intend to sue over diesel exposure.

Earlier this year, the Natural Resources Defense Council and the state attorney general's office sued supermarkets that operate distribution centers near residential neighborhoods where truck traffic is heavy.

Gail Ruderman Feuer, senior attorney with the Natural Resources Defense Council, said the supermarket case is different from the one before Garcia because it targets the users of diesels, not the manufacturers. Feuer said she also has air quality measurements in people' yards that show "a particular person in a particular place is exposed to high levels."

Times staff writer Joe Mozingo contributed to this story.

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