The Continental Carbon Co. Filed a petition Wednesday asking the 11th Circuit Court U.S. Court of Appeals to rehear its decision in March that upheld a $17.5 million punitive damage award against the Phenix City carbon black plant and its parent company, China Synthetic Rubber Corp.

The company was hit in August 2004 with a U.S. District Court jury verdict in Opelika awarding more than $3 million in compensatory damages and attorneys’ fees, plus $17.5 million in punitive damages. The eight-person jury found that airborne pollutants from the carbon black plant near the Chattahoochee River had damaged a south Columbus home, a business, the Columbus Civic Center and other public facilities at South Commons.

Attorney Rhon Jones, with Beasley-Allen law firm in Montgomery, said the rehearing request was another “disappointment” in a case that already has lasted six years without those wronged receiving their due.

“Its disappointing more so for our clients, the city of Columbus, Action Marine and Owen Ditchfield,” Jones said. “They’ve been at this since 2001. Now it’s 2007, and they’ve still received no compensation. It’s really sad.

“That they’re asking for this doesn’t surprise me. They’ve had a U.S. District Court judge tell them the punitive are OK…and three justices from the 11th Circuit have told them it’s the right thing,” he said, “Yet they just continue to string this out.”

Continental Carbon’s appeal of the verdicts was heard by a three-judge panel of the 11th circuit in Atlanta. The panel’s opinion on March 22 affirmed all aspects of the District Court case, including the punitive damages award. It found the company had knowingly and repeatedly polluted the air and caused the damages found by the jury, and labeled the company’s actions and inactions “exceedingly reprehensible.”

The Petition for rehearing seeks to have the case heard again, this time by the full bench of the appellate court.

The company’s request argues that the three-judge panel accepted the plaintiffs’ claims even though scientific test by independent laboratories disputed the degree of damage. It also argues the disproportionately high amount of punitive damages, compared to the actual damages found, is excessive when compared to other cases involving more extreme conduct with more serious damages. The $17.5 million award is the largest the 11th Circuit has even upheld, the petition states.

“Comparing Continental’s conduct to that of defendants in other cases confirms that the result here is aberration,” it states.”…Courts have repeatedly reduced punitive awards to amounts far below $17.5 million even though the misconduct was much more egregious than here.”

The three-judge panel also erred by allowing the more than $1.2 million in attorneys’ fees to be included in the formula it used to allow the large punitive damages award to stand, the company’s attorneys argue.

Continental also cities as grounds for a rehearing the panel’s decision to establish a lower standard of evidence for scientific evidence than the previous court rulings established. That should require reversal, the attorneys wrote.

If a rehearing before the full panel of 11th circuit judges is not granted, the attorneys ask for a new hearing before another three-judge panel.

The petition was filed by a group of attorneys representing Continental Carbon and China Synthetic Rubber Corp., including Clifford C. Bradt of Brady, Radcliff & brown of Mobile, Ala.; Evan M, Tager and Nickolai G Levin of Mayer, Brown, Rowe & Maw of Washington; H. Thomas Wells Jr. and Peter S. Fruin of Maynard, Cooper & Gale of Birmingham, and J Brett Busby of Mayer, Brown, Rowe and Maw of Houston.

Bake Lewis of Houston, a spokesperson for Continental Carbon, said the company still reserves the right, if necessary to consider an appeal to the U.S. Supreme Court on the important issues raised in the rehearsing request.

The Phenix City plant manufactures carbon black, a product used in making tired, rubber, plastics, inks and other products. The lawsuit, pursued as a class-action suit that was denied that status by the U.S. District Court, presented evidence that the carbon black that escaped from the planted landed on the Civic Center, boats of businessmen John Tharpe’s Action Marine Inc, and homes and automobiles of Owen Ditchfield of Oakland Park.

The jury verdict awarded compensatory damages of $570,000 to the city of Columbus, $1.2 million to Action Marine, $100,000 to John Tharpe, and $45,000 to Owen Ditchfield.

None of those damages awards have been paid. Continental Carbon must pay interest on the unpaid awards from the date of the jury verdict.



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