Massachusetts Appeals Court Affirms Judgment Against the City of Lowell for Violating Massachusetts Oil and Hazardous Material Release Prevention Act

In November 2008, the owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, “Plaintiffs”) discovered hazardous material in the land beneath the condominiums, which had been used as a landfill operated by the City of Lowell. In 2012, Plaintiffs filed suit against the City of Lowell under the Massachusetts Oil and Hazardous Material Release Prevention Act (Chapter 21E) for the costs of responding to the. In 2018, after two trials, a jury found City of Lowell liable and awarded Plaintiffs $1,419,550 in damages. Following the verdict, Plaintiffs sought prejudgment interest at twelve percent, which the City of Lowell opposed. The City of Lowell also argued that sovereign immunity barred a prejudgment interest award against it. After the judge adopted the City of Lowell’s argument, Plaintiffs sought to amend the judgment on grounds that Chapter 21E implicitly waives sovereign immunity. They also requested an award of attorney’s fees and costs for the trials and appeal arising from the first trial. The judge excluded the costs associated with the first appeal but awarded the remaining fees and costs and prejudgment interest at twelve percent. The City of Lowell appealed the judgment arguing: (1) the trial judge abused his discretion when he denied the City of Lowell’s motion to strike the testimony of Plaintiffs’ damages expert; (2) the judge erred by allowing the jury to consider a three-dimensional model of the contaminated area; (3) sovereign immunity bars any award of prejudgment interest against the Commonwealth; and (4) the judge awarded excessive attorney’s fees and costs to Plaintiffs.

The Appeals found that the judge did not abuse his discretion in allowing Plaintiffs’ expert’s testimony because there was nothing wrong with his appraisal methodology for calculating damages. Although Plaintiffs’ damages expert did not consider comparable condominium units built on a landfill before arriving at their valuation, he had not used the comparable sales method to arrive at his appraisal because no true comparable existed. The Court held that any argument about the adequacy of the information Plaintiffs’ damages expert relied upon to form his conclusions went to the weight, and not admissibility, of his opinion.

Next, the Court held that the trial judge was permitted to admit the three-dimensional model if it was reliable, relevant, and its prejudicial effect did not “substantially outweigh” its probative value. The model was created in accordance with established methodology in the field, and there was no testimony to the contrary. Accordingly, the judge did not err in admitting the model into evidence.

The Court also agreed that, although the general rule of law is that sovereign immunity traditionally precludes an award of prejudgment interest against the Commonwealth from paying prejudgment interest, Chapter 21E expressly authorizes prejudgment interest where a “person” is liable under the Act, and defines the Commonwealth as a person for its purposes. Accordingly, it upheld the trial court’s award of prejudgment interest. Finally, the Court determined that the judge had not erred in awarding Plaintiffs attorney’s fees because such an award is available under Chapter 21E, and the trial judge considered several factors to determine a reasonable fee award in this case.


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