The Story of Doyle, et al. v. Fluor, et al; 2013 CTLA Case of the Year
Over nineteen years ago, a youngish Denver lawyer received a call from a Missouri lawyer who read an article about the theory of damages presented in Escamilla v. Asarco. The Missouri lawyer asked whether that youngish lawyer would come to Missouri to do another smelter case.
That smelter, the Doe Run Lead Smelter, had operated in the Herculaneum, Missouri community for 100 years, raining lead contamination through Herculaneum and beyond. Hundreds of children were poisoned by Doe Run, and over 600 properties throughout the town were horribly contaminated by the toxic lead. The smelter workers had gone out on strike in 1993 because of the deplorable working conditions. After a several year strike, Doe Run broke the union. The community did not trust that anyone from the area would fight Doe Run.
The U.S.E.P.A. ambient air standard was set by EPA in 1978 after years of opposition by the Lead Industries Association, of which Doe Run’s predecessor St. Joe lead was a founding member, and other lead industry groups. Yet since 1978, Doe Run, had not met the lead ambient air standard at all its monitors in town once.
It was 1994. When Hannon first went to Herculaneum, he wasn’t married, and didn’t have children
In November, 2013, over 19 years later, Hannon as lead counsel, with Gray, Ritter, & Graham of St. Louis, began distribution of funds to over 700 owners and occupiers of properties over the almost 20 year course of the case as a result of a $55 million settlement with Doe Run. The settlement will be paid out in equal installments over four years. The settlement also requires a commitment of timely remediation of properties in Herculaneum, in some cases for the fourth time.
Over 19 years later, Hannon’s oldest son was admitted to college. Hannon had known class representatives Mr. Casey and the Doyles longer than he had known his wife Annie.
In 1978, growing out of the dramatic contamination in El Paso, Texas from the Asarco smelter there, Baker, Landrigan et al. did a survey of children around smelters in the U.S. including Herculaneum. Doe Run then repeated the blood lead studies in 1984 and 1992. From each, Doe Run knew that the blood lead levels of the children of Herculaneum were significantly elevated as compared to surrounding communities, and that soil lead levels decreased with increasing distance from the plant. In 1992, the average blood lead level, in what would become the class area, was higher than the CDC level of concern, and much higher than the average in the state or the country.
In 1994, Doe Run was purchased by Renco, Inc., solely owned by Ira Rennert. Rennert had developed a reputation of buying distressed industrial companies, issuing bonds, and then bankrupting the companies and leaving bond holders high and dry. Rennert has consistently been listed as one of America’s richest men. He had built a 110 room house in the Hamptons on Long Island that has raised the ire of his neighbors now for decades. He purchased two $2.1 apartments in Manhattan for his daughters in a single day, and paid cash. His current net worth is $5.5 billion. A Google search of his name tells some of his story.
On “60 Minutes,” the Doe Run Smelter has consistently been listed as one of the most polluted sites in the United States. The Smelter’s capacity made it the largest lead smelter in the United States, and the second largest in the world. Eventually in 1997 Rennert would buy a smelter complex in Peru, which had historically poisoned even more children. It has been consistently listed on the Top Ten most polluted sites in the world.
At the Broad Street monitor in the Class Area, the Smelter had violated the national lead standard in every quarter, except one, from 1978 through 2000. Monitoring by Doe Run and the Missouri DNR showed a 10 to 100 fold greater level of lead in ambient air in Herculaneum compared to levels measured in other cities around metropolitan St. Louis. Doe Run acknowledged that the average concentration of lead in residential soils within one quarter mile of the smelter was 3,014 ppm, compared to natural levels of lead in soils not contaminated by the smelter of 25 to 40 ppm. In January 1993, the Missouri Department of Health concluded that there “is a long term threat to public health around [the Doe Run Smelter].”
The case was first filed as Dixon v. Fluor and Doe Run in 1995, a class action for property damage and medical monitoring. After surviving a variety of motions and beginning discovery, a class certification hearing was held in Jefferson County. After the judge greeted Doe Run’s appraisal expert and discussed their various connections, Hannon had a feeling the class certification hearing would not go well. Certification was denied in December 2000 in an order that recited Doe Run’s brief.
Through the 1990s Doe Run fought Missouri regulators’ attempts to regulate the plant. In 1995 just as Hannon filed the case, Doe Run replaced soil at the first of eight properties. It continued a 5 – 10 property a year remediation through the beginning of 2000. Doe Run sent “Neighbor Notes” to the community that lead the community away from Doe Run as the source of any lead in the community. The plant was patched together, and leaked lead at every opening. Lead poured out of the stack, particularly when Doe Run increased production in the dark. There were even monitors on the roof of Herculaneum High School, less than a half mile from the plant, that were constantly out of compliance, and track meets and football games had to close because of the pollution. Doe Run had investigated alternative smelting technologies that would have substantially reduced lead emissions since the 1980s, but refused to invest in these technologies that were being used elsewhere, instead spending the money on fighting regulatory compliance.
In 2000, the federal Agency for Toxic Substances and Disease Registry (ATSDR) did a blood lead study of children in Herculaneum. It found that within a half mile radius of the plant, 50% of the children tested had blood lead levels above the then CDC “action level” of 10 ug/dl. Signs went up in the streets of Herculaneum warning that children should not play there because of the lead contamination. EPA concluded that the lead presented an imminent and substantial endangerment to public health. This percentage of lead poisoned children was significantly higher than the national prevalence rate of 7.6% and the Missouri prevalence rate of 8%. The ATSDR classified the site as “an urgent public health hazard.” In 2002 hundreds of families were proposed to be relocated and eventually bought out because of the contamination. EPA forced Doe Run to establish a buyout zone of over 100 houses.
In July, 2001, Hannon and GRG refiled the property damage class as Doyle v. Fluor et al. in the City of St. Louis, including Rennert as defendant. The class definition was narrowed and changed and additional class representatives added. This time the case was filed in the Circuit Court for the City of St. Louis. Doe Run immediately challenged venue. In May 2003, the Missouri Court of Appeals held that venue was improper based on pretensive joinder of one of Doe Run’s officers. State of Missouri, ex rel Doe Run Resources Corp. v. Neill, 2003 Mo. App LEXIS 745 (Mo. App. E.D. 2003). In February 2004, the Missouri Supreme Court reversed the decision in State of Missouri, ex rel Doe Run Resources Corp. v. Neill, 128 S.W.3d 502 (Mo. banc 2004). The court ruled under Missouri law a corporate officer may be held individually liable for tortious corporate conduct if he had actual or constructive knowledge of and participated in an actionable wrong. 128 S.W.3d at 505.
Plaintiffs then moved for certification later in 2004. Certification was granted in June 2005. Doe Run appealed again. In Doyle et al. v Fluor Corporation et al., 199 S.W.3d 784 (Mo. App. E.D. 2006), argued by Hannon, the Missouri Court of Appeals upheld certification. (Fluor was a co-defendant, having owned Doe Run for a period of years). Certiorari was denied. In a companion case, Meyer v. Fluor et al., 220 S.W.3d 712 (Mo. 2007), also brought by Hannon and GRG, the Missouri Supreme Court upheld a cause of action for medical monitoring in Missouri, including ruling that present physical injury was not an element of the tort.
Doe Run continued to operate, and continued to contaminate properties and children in Herculaneum. The Missouri DNR document the recontamination rates. By 2007, 524 properties in Herculaneum had been remediated, and recontaminated.
In 2008, the ambient air standard was reduced ten-fold to .15 ug/m3. Doe Run, with the LIA and ILZRO had fought the lowering of the standard for two decades.
Hannon deposed Ira Rennert in a Manhattan skyscraper in May 2007. Among the lawyers defending Rennert was Michael Mukasey, who shortly after became the U.S. Attorney General under George W. Bush.
In an argument on class notice, Doe Run sought to limit the class to only owners as of the date of notice. After briefing by Plaintiffs, in February 2010 the trial court ruled that the class included all those who owned and occupied property from the date of the filing of the complaint. Doe Run appealed again, the third appeal in the case. The trial court’s decision was upheld in State ex rel. Doe Run v. Van Amburg, ED 94282 (Mo. App. E.D. March 12, 2010).
Class notice was mailed March 2010 and trial set for October 2011. Discovery and expert depositions continued.
In October 2010, facing a October 11, 2011 trial, Doe Run announced that it was going to shut down the lead smelter that had operated over 100 years and through the then 18 year history of the case at the end of 2013.
In September, 2011 at 1 am on the fourth day of mediation, Doe Run and Fluor agreed to settle the case. The settlement, after much wrangling over the written agreement, was final February 2012. But there was more.
A month later, on the eve of the hearing for approval of the settlement, two years after class notice and 22 months after the opt out deadline, two plaintiffs lawyers now sought to intervene to prevent the settlement from being distributed to a class of homeowners that had suffered decades of contamination. Those lawyers, Mark Bronson of Missouri and Gerson Smoger, a Trial Lawyers for Public Justice member, claimed to represent 34 intervenors. Of those, only four class members signed objections; the remaining “objections” were signed by Bronson himself, including for a person Hannon actually represented. These lawyers claimed defects in notice, and that certain individual clients who they claimed to represent but never opted out, did not get enough money under the allocation plan.
On April 4, 2012, the trial court upheld the settlement and proposed allocation plan in its entirety.
On May 11, 2012 Bronson and Smoger filed the fourth appeal in the case, delaying for over a year compensation for the homeowners of Herculaneum. In Doyle et al. v. Fluor et al., 400 S.W.3d 316 (Mo. App. E.D. 2013), after briefing and oral argument by Hannon, the Missouri Court of Appeals rejected all of Bronson’s and Smoger’s arguments. The court found notice and representation adequate, and found no abuse of discretion in approving the settlement and allocation plan. Certiorari was denied on June 25, 2013. 2013 Mo. LEXIS 53 (Mo. 2013).
In November 2013, Hannon began the distribution of the settlement to current and former property owners of Herculaneum over an ownership period dating back to July 1991.
Through all the appeals, including the last even by other plaintiffs lawyers, more and more children were born into the toxic lead contamination from the Doe Run Smelter. Property owners passed away, moved away, and some families stayed, suffering the failures of government agencies to control rampant contamination in the face of constant violation of environmental laws. Doe Run and its predecessors turned a blind eye to the poisoning of property and children, and lobbied against legislation that would lead to limiting exposure to lead, knowing full well the harm it was causing, day after day recontaminating the residential property of Herculaneum. Just last year, Doe Run pushed through legislation that would create immunity for punitive damages from tort suits filed for contamination from Doe Run’s mining waste in Missouri. A legislator’s son was hired by Doe Run as a lobbyist just days before she switched her vote in favor of the legislation. Hannon remains involved in tort claims over damage from lead mining waste in Missouri.
The Doe Run Smelter ceased operations the last day it could under its settlement agreement with EPA, December 31, 2013, the last primary lead smelter in the United States.