What Five Things Can You Learn from EP Litigation?

Are you doing everything you can to protect yourself?

No environmental due diligence professional ever wants to think about getting caught in the cross hairs of a lawsuit stemming from alleged negligence on a Phase I environmental site assessment project. But there is much to be learned from case law about how to protect yourself.

Today I hosted a webinar, Lessons Learned from Phase I Litigation, with Anthony Buonicore who has  been an expert witness over the past 20 years on cases involving environmental due diligence. For our event, he hand-picked five cases involving a variety of sites: an old paint manufacturer, an undeveloped lot with wetlands, vacant land adjacent to former industrial site, a shopping center with a former dry cleaner and a site with a small industrial tenant.

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Buonicore did the hard work of combing through cases to distill them down to their critical elements: site history, what the EP did, what the plaintiff charged later, the EP’s defense and the result (always the same: settled by the E&O insurance company). There are valuable lessons to be learned by the mistakes of these firms. Here are the top five:

1.    When you rely on important facts (such as the depth to groundwater or the type soil or groundwater flow direction from a Phase II investigation), be sure to reference the source.

2.    When you rely on important assumptions (such as  groundwater flow following surface topography, or the soil in the subsurface being homogenous), be sure to clearly state this.

3.    When you provide your professional opinion, be sure always to condition it (e.g., clearly identify what you base it on).

4.    Be sure to identify in your terms and conditions the limiting conditions identified in the ASTM E1527 standard, i.e., the investigation is not exhaustive and uncertainty is not eliminated.

5.    Describe your scope-of-work clearly and as comprehensively as possible.

In the end, if you are sued for negligence, the key questions will always boil down to this:

“Did you clearly say what you will do?”
And then:
“Did you do what you said you would, no more, no less?”

Great points to remember on any Phase I ESA project.

Think about it: Are you doing everything you can to ensure that you are minimizing your exposure to professional liability?

Take an hour and listen to a replay of today’s one-hour event here. As one attendee said:

“This was much appreciated. I saw a couple of ways to improve our Phase Is.”

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