- The Washington Times - Monday, November 11, 2002

CHESAPEAKE, Va. (AP) The city is not immune from being sued by a woman who says contaminated water caused her miscarriage, a judge has decided.
Early next year, Circuit Judge Norman Olitsky will hear evidence on four charges of fraud against the city. He then is expected to rule on whether a jury will hear the case of Helen Cunningham, who miscarried in 1998.
Nearly 170 other women also have filed lawsuits seeking more than $1 billion, claiming Chesapeake officials misled them about high levels of trihalomethanes, or THMs, in the city's drinking water that they say caused miscarriages.
Last month, Judge Olitsky threw out part of Miss Cunningham's case because some of the charges relied on inapplicable federal laws.
City Attorney Ronald S. Hallman said at the time he hoped Judge Olitsky also would allow Chesapeake officials to claim sovereign immunity from Miss Cunningham's lawsuit.
Sovereign immunity protects localities from many types of lawsuits.
But last week, Judge Olitsky disagreed with the immunity argument and a city challenge that argued Miss Cunningham's pleadings were legally insufficient.
In January or February, Judge Olitsky will hear evidence about when Miss Cunningham could have reasonably discovered that the water might have caused her miscarriage. The timing is crucial in determining whether the lawsuit can go forward under the state's two-year statute of limitations.
THMs form when chlorine used to disinfect drinking water mixes with organic material such as algae, twigs and leaf particles.
City officials knew about the THM problem when the first water plant was built in the early 1980s, attorneys argued Wednesday. Research showed that the contaminated water placed women who used it at greater risk of miscarriages and other problems. About the same time, THMs came under federal regulation.
Officials didn't start warning the public until 1998, the women's lawsuits say. That year, after tests showed elevated levels of THMs, the city issued public health warnings that women who drank five or more glasses of the water a day could be at higher risk of miscarriage.
The city's attorneys argued Wednesday that officials sufficiently warned residents by placing ads and discussing the issue in media reports. After that, the burden of getting more information or seeking doctors' advice fell on the women, they argued.
Miss Cunningham's attorneys countered that residents unknowingly relied on falsified test results that city officials made public. A telephone system set up for women to call to hear the results was a sham, they argued.

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