LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 31
What this case demonstrates is that quantification of the type of natural resource injury is
essential to a successful recovery.
The plaintiffs may have had been successful had they
considered what loss of use involves before asserting it as the primary injury. 119
It also
demonstrates that NRD claims for injury relating solely to loss of use are generally weaker and
have a lower possibility of success then a claim for restoration where there is an injury by mere
virtue of the existence of contaminants in the natural resource.
One of the most critical factors in recovering NRD is the distinct nature and extent of the
injury and what that means for damages. It must be remembered that proving how a natural
resource has been injured is not the same as proving what amount of damages should be
recoverable.
E. DAMAGES
1. Generally
The method and manner of quantifying damages to a natural resource is perhaps the
greatest challenge for NRD litigation, both presently and in the future. 120
“Damage is a legal
concept determining what a liable party has to do or pay to make the public or environment
whole for the injuries to natural resources.” 121
In addition, damages help to deter future
119 Credibility with regard to NRD claims is essential, especially when non-traditional injuries are being asserted.
“Before a lawyer can persuade a jury or any fact-finder, it is necessary to start at the beginning and decide what the
case is about. Surprisingly, many lawyers never really know this fact, or they (or their experts) change their game
plan so often that it seems they have no plan . . . In short, the case should be as planned as possible before going to
court.” ALLAN KANNER, ENVIRONMENTAL AND TOXIC TORT TRIALS § 1.01 (2d ed. 2004).
120 Because of the complex nature of damages, the damages phase may be bifurcated from the rest of the trial.
“Bifurcation of an action is appropriate where . . . there are complicated issues of liability that must be resolved prior
to the assessment of damages.” Witherbee v. Honeywell, Inc., 151 F.R.D. 27, 29 (N.D.N.Y. 1993).
121 See Kanner, supra note 14, at 104.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM