Meeker is one of the seven people who’ve filed a lawsuit against the glassmaker with help from the Seattle law firm Keller Rohrback.
“My No. 1 concern is our health and our neighbor’s health,” she said.
Bullseye and another Portland glassmaker, Uroboros Glass, were recently linked to elevated levels of heavy metals air pollution in the city.
In the suit, Meeker said she’s not planting her usual strawberries this year, because health officials said it’s not safe to eat out of her garden.
So far, Meeker and the other plaintiffs are only claiming nuisance and trespass: Nuisance in that their kids can no longer play in their backyards and the value of their homes have dropped. And trespass in that Bullseye allowed toxic chemicals to enter their properties without permission. Uroboros is not named in the lawsuit.
“The movement of pollution onto somebody’s property amounts to a trespass,” said Melissa Powers, an associate professor at Lewis and Clark Law School. She said proving nuisance and trespass is a much lower bar than proving someone got sick from Bullseye pollution.
“It’s very complicated to actually trace one specific cancer to one specific exposure,” Powers said.
She added that attorneys would need data and statistics if they were going to try to make a direct connection.
“Basically, to create as strong a case as possible showing that, more probable than not, the particular activity you’re challenging is a cause of the cancer,” Powers said.
The U.S. Forest Service discovered the concentration of heavy metals around Bullseye in a study of moss. But so far, an Oregon Health Authority study hasn’t identified any local cancer cluster.
One of the main legal questions is whether it will become a class action suit.
Keller Rohrback argues that there are enough individuals who qualify to justify a class action: They all live near Bullseye; they were all exposed; and they all suffered similar injuries.
Several law firms have expressed interest in a class action case if a judge agrees to it.
“There are number of factors that the judge would consider,” said Powers, “including the degree of expertise of the particular law firm; past experience litigating cases like this; timing — so which law firm filed first; and other factors, just to make sure that the class itself is going to receive adequate representation.”
Ethical rules stop lawyers from directly soliciting clients for this case. But firms have been gathering plaintiffs by appearing at informational meetings about Bullseye and by setting up websites. They’re also gathering clients via word of mouth and by getting their names into news stories.
If the case becomes a class action lawsuit, plaintiffs don’t have to opt in. Generally, they’re either a member of the affected class or they’re not. They would be notified about the suit and if there’s a settlement, they’d get a slice.
But nobody knows how much that slice might be. Remember, there are thousands of potential plaintiffs and Bullseye is not an enormous company.
Although they don’t have to, lawyers are likely to consider Bullseye’s ability to pay. It’s little use asking for damages so large that the company goes out out business because then they won’t be able to pay. That is unless plaintiffs want them out of business — as was the case in some of the lawsuits against the tobacco industry.
There’s also the issue of attorney fees. The court generally decides those based on time spent on the case and the cost of expert testimony. But judges often cap costs at a quarter or a third of the settlement.
For its part, Bullseye Glass officials have said they operated their factory in line with permits issued by the state Department of Environmental Quality.
Chris Winter, an environmental lawyer with the Crag Law Center, doesn’t think that Bullseye having a permit from DEQ to burn heavy metals without a filter insulates it from nuisance and trespass suits.
“I think a lot of what Bullseye could do is to be proactive and go to the local community and say, ‘We’re going to change the way we do business. We’re going to take public health much more seriously and we’re going to be much more transparent,’” said Winter.
Bullseye has said it plans to install a new pollution filtration system, and it’s suspending its use of cadmium and arsenic, which are used to add colors to stained glass.