A lawsuit filed three years ago by six Milford residents who say they were harmed by drinking water supplied by the Milford Water Co., or who suffered financial losses during a boil-water incident, has been approved for class action status.
The status change was approved Monday by Superior Judge John McCann in Worcester Superior Court. The decision opens the lawsuit, which seeks recovery of financial losses, to all customers of the Water Company, or their children, or other water users, who were damaged or injured between Aug. 5 and 21, 2009 as a result of the boil water order issued by the state, or the "Milford Water Company's failure to provide potable water and adequate service during that time period."
The boil water order was issued after testing revealed bacterial contamination in the drinking water supply. It remained in effect for nine days for most Milford residents, longer for others near the Hopkinton line.
The civil lawsuit filed in September 2009 accuses the private utility company of negligence, gross negligence, breach of contract, breach of common law warranties and violation of state law.
It is now scheduled for trial in October 2013, said attorney James O'Connor Jr., of Fitchburg, who represents the residents, in an emailed message.
An attorney for the Milford Water Co. could not be reached Thursday afternoon for comment.
All but two of the plaintiffs who filed the lawsuit, just weeks after the boil water order crisis, continue to live in Milford. The plaintiffs are Paul Bennett, Jameson Mello, Julie Garney, and George and Elizabeth Marotta. Mello also represents the interests of his underage daughter in the suit, according to the court decision.
In opening the lawsuit to class action, Judge McCann found the request met the requirements, including that the claims of the original plaintiffs are "typical of the claims of the class as a whole," and the accused unfair, or deceptive acts have "caused similar injury to numerous other persons similarly situated and the class representatives adequately and fairly represent such other persons."
According to an earlier court order in the case, some of the residents who filed suit reported they suffered from diarrhea or stomach cramps, during and after the week of Aug. 5, 2009, or sustained financial losses as a result of the water contamination.
According to an Oct. 1 court order, which dismissed several motions by the Water Co. in the case:
The Milford Water Co. notified the state Department of Environmental Protection on Aug. 8, 2009 that two routine water samples collected on Aug. 5 had tested positive for coliform, and six repeat samples collected Aug. 7 also were presumed to be positive for coliform. The state told the Water Co. verbally at 9 p.m. Aug. 8 to put in place a "boil water order" for the entire town until one round of samples came back bacteria-free.
That same night, the then-manager of the Water Co., Henry Papuga, ordered an increase of water chlorination. He also notified town officials, via voicemail messages, of the information.
The town began notifying residents of the boil water order that weekend. On Monday, Aug. 10, 2009, the state DEP told Papuga, in writing, that the water "could pose an unacceptable risk to public health" and that the boil water order should remain in effect until ended by the DEP in writing.
Under the order, residents were told to boil their tap water for at least one minute before consuming it, or to consume water from an alternate source.
The DEP ordered the Water Co. to notifiy the public and the town officials of the contamination and the boil order, to initiative an emergency response plan, to conduct repeat monitoring for coliform and submit an emergency response report, among other requirements. "Despite these circumstances," the order stated, "on Aug. 10, 2009, at a Milford Board of Selectmen's meeting aired on local cable television, Papuga stated "that the water as of right now is absolutely fine" and "all of our tests have come back that the water is absolutely perfect to drink."
On Aug. 12 and 13 the water test results still showed contaminated water. On Aug. 19, the boil order was lifted for most residents of Milford, except for some customers near the Hopkinton border, where water samples still showed the presence of coliform. The boil order there was lifted on Aug. 21, 2009.
The plaintiffs in the case, the six residents, contend the source of the bacterial contamination was holes in the roof of the Congress Street water tank, and the Water Co.'s failure to clean, inspect or maintain the tank for an extended period of years. The Water Co., according to the court orders, cites the contamination source as being water from Echo Lake.