After two trials with clashing verdicts, two men who claim they contracted serious illnesses while working at a contaminated site in Hicksville deserve another chance to prove their claim, their attorneys said.
Attorneys for Gerard DePascale, of Lake Ronkonkoma, and Liam Neville, of Woodside, are scheduled to make oral arguments Tuesday before the Second Circuit Court of Appeals.
They're challenging several elements of their two trials: the first left them with a $12 million verdict; the second negated the first and found they weren't entitled to damages.
They developed illnesses after working for a firm on Cantiague Rock Road in Hicksville that sat atop land once used by Sylvania Electric Products for several purposes, including production of nuclear fuel for the federal government between 1952 and 1967. Sylvania merged with General Telephone in 1959, and that company merged in 2000 with Verizon Communications, bringing the Hicksville property under Verizon ownership.
A federal jury in Central Islip awarded the men $12 million in damages in 2009, but that verdict was partially set aside by the trial judge, Leonard Wexler.
Jurors found that Verizon and other corporate defendants were not entitled to a claim of protection under parts of the law that shield private firms from liability for some government work they perform under government specifications and direction.
But Wexler said in a post-verdict ruling that there was "overwhelming" evidence that Verizon was protected by the government-contractor defense, and he ordered a new trial on that sole issue. A second jury found in 2011 that Verizon was not liable.
Attorneys for the two men said in their appeal that the original verdict in their favor "fully complied with the law," was "supported by the trial evidence," and should not have been set aside. They also contend they were improperly blocked from introducing some evidence at the second trial.
Verizon said in a statement last week that it's "confident that it will prevail in the appeal." The statement said Wexler "acted well within his discretion to order a new trial" on the government-contractor defense.
Verizon also appealed the original finding that the men were entitled to $12 million because their illnesses were due to exposure to contaminants at the site, which has been the subject of 27 investigations and cleanups since 1987 and where investigators have found PCBs, chlorinated solvents and arsenic in buried drums.
Documents in other lawsuits reported that workers at the Sylvania plant incinerated scrap uranium into the open air and dumped toxic cleaning solvents and metals in underground tanks and sumps.
DePascale, 51, developed a rare form of cancer and lost a lung. Neville, 53, developed kidney disease. Both men worked at a magazine distribution firm atop the site from the early 1990s through 2002.