Partial Dismissal and Opportunity to Amend Complaint – Summary

After Judge Fleissig’s partial dismissal on March 27, 2013, six defendants and one count remain ‘alive’ in the Coldwater Creek lawsuit.  The remaining count is a Federal claim falling under the Price Anderson Act (“PAA”) as amended in 1988.  The Price Anderson Act is a series of amendments to the Atomic Energy Act that were intended to foster private sector participation in the nuclear energy industry.

In Count One of the complaint, Plaintiffs assert a public liability action under the PAA.  A public liability action is a claim of liability related to a ‘nuclear incident’ – the release of nuclear by-products, special nuclear materials, and/or source materials – that causes bodily injury, sickness, disease, death, loss or damage to property, or loss of use of property.   In its decision, the court agrees with the Plaintiff’s definition of a public liability action, and agrees that plaintiffs may bring such a claim in this particular court.  However, the Judge found that claims arising out of a ‘nuclear incident’ may only be brought under the PAA (a federal law), and not under state law claims, such as negligence, emotional distress, and the other state law claims included in Counts Two through Eight.  The judge quotes a decision of the U.S. Court of Appeals for the Fifth Circuit (“5th Circuit”), stating “A plaintiff who asserts any claim arising out of a ‘nuclear incident’ as defined in the PAA . . . can sue under the PAA or not at all.”  Cotroneo v. Shaw Env’t and Infrastructure, Inc. 639, F.3d 186, 194 (5th Cir. 2011).  The judge also looked to the decision of the U.S. District Court for Eastern Tennessee, in which the court dismissed state law counts in a class action for damages under the PAA and state tort law based on radiation releases at a nuclear fuel processing facility in Tennessee between 1957 and 2010, holding that the PAA completely preempted state law causes of action such as strict liability, wrongful death, and negligent infliction of emotional distress.   For these reasons, the judge dismissed each of the state law claims in the lawsuit.

Because Missouri is not part of the Fifth Circuit, the Judge was not required to follow the determination of the court in the Cotroneo case, quoted above.  Similarly, the judge was not required to follow the decision of the Eastern District of Tennessee.  However, she was free to do so, where neither the U.S. District Court for Eastern Missouri or the U.S. Court of Appeals  (of which Missouri is a part) had ruled on this issue.

The next section of the judge’s decision revolves around the ‘duty of care‘ owed to the plaintiffs by defendants.  In other words, how much care and attention were required of the defendants in their handling of radioactive materials – and should the court look to state or federal law in deciding the level of care and attention required?  The court held that the duty of care owed by the defendants is determined by federal safety standards for maximum permissible radiation dose levels.  The court can only rule in favor of the plaintiffs if they can show that the defendants caused the plaintiffs to be exposed to an amount of radiation exceeding the federal safety standards for maximum permissible radiation dose levels, and that such exposure caused plaintiffs’ injuries.

The required duty of care impacts the manner in which the Plaintiffs draft their complaint.  Specifically, the defendants wanted the entire case dismissed because, they claimed, the Plaintiffs’ did not meet the requirements for drafting their pleadings (the complaint).  Defendants claimed – and the judge agreed – that the Plaintiffs did not specifically claim that each plaintiff was injured because s/he had been exposed to radiation in an amount greater than the federal maximum requirement, or that each Defendant was the cause of such exposure.  Plaintiffs claimed that the content of their complaint is sufficient, and that more specificity is not required at the time of pleading.  Rather, Plaintiffs claim, more specifics will become available through the discovery process – especially since some of Defendants’ actions were performed secretly.  The Plaintiffs requested that, if the court agreed with the Defendants, and found that their complaint required more specific allegations, the Plaintifs be given the opportunity to amend the complaints in order to meet the heightened requirements.

Ultimately, the judge found that “an essential element of a public liability action is that each plaintiff’s exposure exceed the federal dose limits (emphasis mine).”  The court said that although the Eighth Circuit Court of Appeals had not decided this issue (in other words, even though the court knew it was not required to), the court was going to follow the decisions of the U.S. Courts of Appeals for the Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits, which have concluded that “the maximum permissible radiation dose levels set by federal safety standards establish the duty of care for radiation injuries, and that imposing a non-federal [state] duty would conflict with federal law.”

Instead of dismissing Count One the case, however, the Court did grant Plaintiff’s request to amend the original complaint.  The court ordered that the Plaintiffs shall have up to and including May 10, 2013 to “file amended complaints that sufficiently plead a cause of action under the PAA.”  This means that the amended complaint must contain factual allegations of  when, where, and how each Plaintiff was exposed;  identify the federal permissible dose limit for each Plaintiff’s claim;   and allege the radiation dose each Plaintiff received.

The court also ordered that the decision to deny Defendant’s Motion to Dismiss as it relates to Count One is without prejudice – although the judge did not dismiss Count One (the PAA claim), the Defendants are free to file new Motions to Dismiss after the Plaintiffs file their amended complaint.

The judge found that Missouri’s five-year statute of limitations in personal injury claims applies to claims under the PAA, and that defendants are free to raise their statute of limitations claims in response to the Plaintiffs’ amended complaint.

As far as the decision to dismiss the complaints against AFC and Citigroup, Inc., the Judge found that the two companies are not proper defendants in the lawsuit because the court lacks personal jurisdiction.  In other words, the judge agreed with their arguments that they do not have significant contacts with Missouri, and that even if their subsidiaries have contacts with Missouri, AFC and Citigroup, Inc. cannot be held liable for the acts of those separately incorporated subsidiaries.

Motions to Dismiss and ‘Lone Pine’ Motion – In General

On March 27, 2013, U.S. District Court (Federal) Judge Audrey G. Fleissig partially dismissed the lawsuits filed on behalf of individuals claiming injury by contaminants of Coldwater Creek.   While many parts of the lawsuit have been dismissed, the suit is still pending in the U.S. District Court for the Eastern District of Missouri.

In order to better understand the judge’s decision to dismiss parts of the case, and to best understand which parts of the lawsuit are still ‘alive,’ it is helpful to understand the steps that led up to the judge’s decision.

First of all, a Motion to Dismiss – a request for the judge to toss out the lawsuit – is filed by the defendant in almost every lawsuit. Plaintiff attorneys know that this will happen, and are prepared to respond to a Motion to Dismiss.

The most common reason for a defendant to ask the judge to dismiss a lawsuit is the claim that the plaintiffs ‘failed to state a claim upon which relief can be granted.’  At its most basic, this could mean that the plaintiff claims that defendant did something that is not, in fact, illegal.  More frequently, the defendant contends that the contents of the plaintiff’s complaint is not specific enough to allow the judge to rule against the defendant.  For example, the defendant may argue that the plaintiff’s complaint doesn’t explain the connection between the defendant’s behavior and the plaintiff’s harm.

A lawsuit may also be dismissed if the plaintiff did not follow specific rules related to how a complaint must be written.  Similarly, a defendant may ask for dismissal of a lawsuit because the events in the complaint happened ‘outside the statue of limitations‘ – in other words, Congress or the Legislature passed a law stating that certain types of lawsuits must be filed within a specific time after an injury occurs.  If the injury occurred outside that time-frame, the complaint must be dismissed.

Sometimes defendants request that a lawsuit be dismissed because, they claim, the court ‘lacks jurisdiction‘ to hear the claim – that it does not matter whether the plaintiff’s complaint is true or not true because the lawsuit should not have been filed with this particular court.  The judicial system includes several different kinds of courts, and certain kinds of cases must be filed in different kinds of courts.   In general (with many exceptions) claims that a Federal law (a law passed by the U.S. Congress) has been broken are filed in Federal court, and claims that a State law (a law passed by the state legislature) has been broken are filed in State court.  In some cases, Congress or the Legislature limit or specify where a lawsuit may or must be filed if a particular law is violated.  Sometimes the residence of the plaintiff or defendant will determine where a case is filed.

In some types of cases, a plaintiff may have several choices of where to file a lawsuit.   This decision can get very complicated when one lawsuit includes both Federal and State laws, where the plaintiffs and defendants are located in different states, and/or where the injury to the plaintiff occurred in one state, but the plaintiff and defendant live in a different state or states.  In some cases, a suit can be filed in Federal court simply because of the amount of money at stake.  Deciding where to file a lawsuit is one of the most important decisions an attorney makes when the case could be filed in more that one court.  A lawsuit may be dismissed if it is filed in the ‘wrong’ court.  Sometimes there may be a strategic advantage to filing the lawsuit in one court over another because of different rules, different judges, or different jury pools.  Some lawsuits are put on hold and/or appealed simply because the sides disagree over where the lawsuit should have been filed.

In the Coldwater Creek case, the defendants also filed a so-called ‘Lone Pine’ Motion for a case management order.  A case management order is an order from the judge that describes, as the name suggests, how a specific case will be managed and may contain additional rules the attorneys must follow.  Such orders are regularly used in large cases with multiple plaintiffs and multiple defendants in order to make the case easier to manage.  In cases such as the Coldwater Creek case, the attorneys and judge rightly assume that the documents in the case will fill many, many boxes, file cabinets, or even a small room.  It often makes sense to try and simplify the case as much as possible in order to limit unnecessary documents, and reduce the amount of time it will take to work through the case.  Judge’s caseloads are notoriously high, especially in Federal court, and Judges are under pressure to get through cases as quickly as possible.  The plaintiffs and defendants rarely agree on which documents are ‘necessary,’ or how much time will be required for a ‘fair’ hearing.  Arguments about these issues must be resolved before the actual complaint can be examined.

In very general terms, a Lone Pine case management order requires the plaintiffs to provide specific facts to support their claims of injury before the discovery period begins.  Discovery is the period of lawsuit during which the plaintiffs and defendants are allowed to request information and documents from one another.  Each party is required to provide the information and documents requested, provided the requests fall within certain rules and guidelines set forth by the Rules of Civil Procedure and the courts.

In the Coldwater Creek lawsuit, plaintiffs named fifteen (15) different defendant companies.  The complaint makes different allegations against each company.  As a result, each company has its own independent interest in the lawsuit, and is free to hire its own lawyers to represent those specific interests.  Some of the companies decided that their interests and defenses to the allegations in the lawsuit were similar enough that their attorneys worked together to create a joint defense.  After the initial complaint was filed, the plaintiffs dismissed the claims against some of the defendants.

As a result, in the Coldwater Creek case, attorneys filed four separate Motions to Dismiss on behalf of eight (8) defendants, in addition to one ‘Lone Pine’ motion filed on behalf of all ten (10) remaining defendants.  While the judge reviewed each motion separately, she drafted one opinion in which she addressed all five motions.

The judge’s opinion will be described in Plain English in the next post.

Partial Dismissal

The Judge’s decision partially granting the Defendant’s Motion to Dismiss is now available here:

http://www.scribd.com/doc/133671739/McClurg-v-MI-Holdings-M-O-on-Mots-to-Dismiss-2

Several different motions to dismiss were submitted on behalf of multiple defendants.  Some defendants have been dismissed from the lawsuit completely.  For the other defendants, the state law claims have been dismissed.  The claim arising under federal law remains.

I’ll post a more detailed ‘Plain English’ version of the decision as soon as I can.

Portions of Coldwater Creek Lawsuit Dismissed

Today the St. Louis Post Dispatch reported that seven of the eight counts in the Coldwater Creek lawsuit have been dismissed by U.S. District Court judge Audrey Fleissig.  According to the article, the claim “under a federal law involving injuries caused by exposure to nuclear materials was not dismissed”.   Based on the complaint, I assume the reporter is referring to Claim 1:  Claims Arising Under the Price-Anderson Act.  A summary of this claim is available in the “Complaint Summarized” post on this blog.

The Post Dispatch Article can be read in its entirety here.

I am currently celebrating the Easter weekend with family, and will provide a more detailed update as soon as possible.

How to Take Action (Without Filing a Lawsuit)

Initially, the purpose of this blog was simply to explain the legal aspects of the Coldwater Creek Lawsuit in plain English.  Since the report about the creek and lawsuit aired on KSDK last week, many people who lived near the creek and have suffered from a variety of illnesses have left comments here.

In order to answer some of the common questions being posted, I have included new tabs (above) to provide some of the information requested.  The tab entitled “The Attorneys” provides contact information for the attorneys handling this particular lawsuit, as well as information about how to go about finding an attorney of your own to help you determine whether you have a legal claim.   The tab entitled “More Information” includes information about how to contact volunteers, who, unrelated to this law suit, are collecting data from people who grew up or lived near Coldwater Creek and have developed cancer, autoimmune, and other diseases, or have suffered from reproductive problems.  The volunteers are compiling the data in order to present it to the Center for Disease Control in the hope that the government will conduct its own survey, and clean up Coldwater Creek.

If you are willing to share information about your illness with these volunteers, please visit https://www.surveymonkey.com/s/coldwater_creek_missouri.  There, you will be asked to provide information about your street address and zip code, the years you lived there, and the type(s) of illness(es) you have dealt with.  Providing your information here will not automatically include you in any pending litigation, and will not result in your inclusion in this or any other lawsuit.  No legal action will occur on your behalf unless you personally contact an attorney, and sign an agreement authorizing that attorney to represent you.  Your data will only be used to determine whether there is a ‘cluster’ of illnesses in the Coldwater Creek area.  If a ‘cluster’ is proven, the hope is that the government will conduct a complete clean-up of Coldwater Creek so that current and future residents of the area are not exposed to uranium, thorium, and the other contaminants that may be leading to serious illnesses.

You may also wish to contact your elected officials and encourage them to make sure that Coldwater Creek is cleaned up.  Senator Claire McCaskill of Missouri can be contacted at http://mccaskill.senate.gov/?p=contact Senator Roy Blunt of Missouri can be reached at http://www.blunt.senate.gov/public/index.cfm/contact-roy.  Remember, these officials work for YOU.

After the Complaint – Now What?

Immediately after the Coldwater Creek lawsuit was filed, it received much attention for obvious reasons.  But now what?

Now, we wait.  And wait.  And wait.  It feels like forever, but the timing of each aspect of a lawsuit is spelled out in the Federal Rules of Civil Procedure.  The Rules are very dense, detailed, and difficult to read.  Like all good sets of rules, they are full of exceptions to the rules.  And then, there are exceptions to the exceptions.  So, I’m not going to even try to spell out the specific timing of a case like the Coldwater Creek case, or guess how long it may take to resolve.  Instead, I’ve tried to explain the very basic next steps in the case:

After the complaint was filed with the court, the plaintiffs (the injured parties) notified the defendants (the companies they claim injured them) of the lawsuit.  At that point, the defendants have a certain number of days to file their response to the complaint.  The general rule is 21 days, but again, there are exceptions to that rule.

When a case has multiple defendants, the defendants usually contact one another in order to decide if they want to pursue a joint defense, or an individual defense.  The defendants in the Coldwater Creek case are quite varied – from publicly traded multinational corporations, to limited liability companies that are possibly owned by an individual or small group of individuals.  Some of the smaller companies are owned by larger corporations.  As a result of these differences, the defendants may have very different ideas about how to defend themselves against the lawsuit, and may choose an individual defense.  Companies who are similar and have a similar defense may pair up in their defense.  In any case, the plaintiffs’ lawyers will likely be dealing with multiple defense lawyers, each with different goals.

After several weeks, or up to a couple of months, the defendants will submit their responses to the case.  Each defendant is required to simply admit or deny each allegation or claim against it.  The response will not contain a legal or factual defense, or any evidence related to the admissions or denials.  The response is filed with the court, and becomes part of the public record.

After the response is filed, the Plaintiffs and Defendants will begin the process of discovery.  Discovery is the process by which both sides of the lawsuit gather information and evidence related to the case.  The Judge will meet with both parties for a scheduling conference to create a schedule for discovery.  However, the discovery schedule usually changes during the course of the case.  (I will explain more about that later.)

Common discovery tools include (but are not limited to):  Interrogatories, in which one side poses a series of questions that the other side is required to answer (again, with certain exceptions);  A request for admissions asks the opposing party to admit certain facts in the case, in order to shorten the trial time by reducing the number of items the parties must prove in court.  A request for documents requires one party to provide documents to the other party, even if those documents contain information that is harmful to the party providing the documents;  Depositions are used to question potential witnesses under oath before trial.

Discovery can take months or years.  There are limits to the number of requests and depositions each side may ask for, but each side may also request permission to exceed the general limits.  Each side may also ask for an extension of time allowed to provide the answers or documents requested.  Sometimes, one party purposely drags out discovery in order in order to delay trial as long as possible.  Disagreements between the parties related to discovery requests, delay and extensions can result in additional conferences with the judge, or motions to the court.  When a party files a motion related to discovery, the party is asking the judge for a formal court hearing to resolve the disagreement.  Each conference and motion takes additional time, and the discovery schedule is often changed – and becomes longer.

Interrogatories, requests for documents, depositions and conferences with the judge are not part of the public record.  In other words, the evidence gathered during discovery and the conversations with the judge remain confidential.  It is up to each side to decide which pieces of evidence it will enter into evidence, or formally submit to the court at the time of trial.  Only items formally entered into evidence will become part of the public record and are generally available to case observers.

Motion documents, on the other hand, are generally public, although some motions and responses to the motions can be ‘sealed’ so they remain confidential, either to only the Judge or to the parties in the case.  (For example, individual medical records may be sealed.)  If a motion results in a court hearing, the court hearing is usually open to the public.  Again, if the motion is related to particularly sensitive information, it may be closed as well.

The discovery process is also subject to the Federal Rules of Civil Procedure, and the lawyers are subject to very strict ethical guidelines. Lawyers can face penalties (fines, reprimands, or even – though rarely – disbarment) if they do not behave in an ethical manner during the discovery process.  (For example, if they knowingly hide documents that they are required to turn over to the other side.)

At any time prior to, during, or after discovery, but before trial, the defendant may ask the judge to dismiss the case for failure to state a claim.  This means that the defendant claims that the plaintiffs’ complaint does not include a legal claim that can be resolved by a court.  If the judge finds that no legal claim has been asserted, the case is dismissed.

Either party may also file a Motion for Summary Judgment – usually after discovery is complete.  In a motion for summary judgement, the moving party (the party filing the motion) claims that there is simply no factual dispute in the case – both sides agree on the facts.  If the parties agree on the facts, the argument goes, then the only remaining aspect of the case is a determination of whether the law favors the plaintiff or the defendant.  The judge may then ‘summarily’ rule in favor of the moving party, thereby ending the case.

(Here’s an example of summary judgment), Jimmy and Bobby both agree that the Jimmy’s ball broke Bobby’s window. They also both agree that Tommy is the person who actually threw the ball.  Bobby believes that under the law, the owner of the ball is responsible for any windows the ball breaks. Jimmy believes that under the law, the person who threw the ball is responsible for any windows the ball breaks.  Jimmy may file a motion for summary judgment.  If the Judge agrees with Jimmy’s analysis of the law – yes, indeed, the thrower is responsible –  the judge may grant ‘summary judgment’ in favor of Jimmy.  Jimmy’s ball broke the window, but Jimmy is not at fault.  Jimmy ‘wins’ and does not have to pay to fix Bobby’s window.)

If the case is not resolved by Motions for Summary Judgment, the case is then ready to go to trial.  Trials can last anywhere from days to weeks, to months, depending on the complexity of the case.  Perhaps you remember the John Travolta movie, “A Civil Action,” based on the book by the same name.  In that case, the initial phase of the trial took five months.  (The case ended with one defendant being found ‘not guilty’ by the jury after the first phase of the trail.  Prior to the second phase of the trail, the other defendant settled for a relatively low $8 million.)

Which brings us to settlement negotiations.  The parties can try to settle the case at any point.  Often, parties discuss settlement at many different points during the litigation.  None of the settlement negotiations are public, or can be introduced at trial by either side.  Settlement may happen any time prior to the end of trial.  Usually, cases that settle do so after discovery, and just prior to – even the night before – trial.

So how long will the case take from start to finish?  There is no way of knowing.  In theory, the case could settle tomorrow.  In reality, it’s time to settle in for months and months of discovery and related disputes.

The “Civil Action” case took nine years from start to finish.  The Three Mile Island case (related to the release of nuclear radiation into the environment) was filed in 1979, and wasn’t resolved until 2002 – and even then several small portions of the case related to businesses who claimed damage were not resolved.  Of course, most lawsuits take much less time to resolve, but when a case consists of multiple plaintiffs and multiple defendants, it is not unusual to measure the time of the case in years, rather than months or  days.

So, it’s time to settle in for the long haul.  How ’bout them Cards?

Coldwater Creek Lawsuit – Original Complaint

In case you are interested in wading through all 42 pages of the Coldwater Creek complaint, here it is!

Just click below:

http://www.scribd.com/doc/84382268/Filed-Complaint

Coldwater Creek Lawsuit – Complaint Summarized

The complaint is forty-two (42) pages long, with eleven (11) formal sections.  I have attempted to summarize each of the sections below.  Please keep in mind that everything in the complaint is from the plaintiffs’ point of view, and lays out the basics of the plaintiffs’ case, without evidence.  The purpose is to start the lawsuit and inform the defendants of why they are being sued.

Section 1.  Introduction

The Introduction lays out the plaintiffs case in very broad and simple terms.  In this section, the plaintiffs claim that they were injured because the defendants were reckless and negligent in the way they processed, transported, stored, handled and/or disposed of radioactive materials near residential neighborhoods.  Because of the defendants’ reckless and negligent behavior, hazardous, toxic and radioactive substances were released into the environment, and contaminated the soil, air and groundwater.  This caused the plaintiffs physical injury and emotional distress.

Section 2.  Jurisdiction

The Jurisdiction section explains why the case should be heard in federal court instead of state court.  The plaintiffs claim that federal court is the proper court, in part, because two specific federal laws were broken:  the United States Atomic Energy Act and the United States Price Anderson Act.  Some state laws are involved, but where a federal law is in question, the federal court may also hear the state law claims.

Section 3.  Venue

The venue is the physical location of the court.  Because the plaintiffs were injured and the nuclear incidents causing the injuries both occurred in St. Louis County, the federal court responsible for that geographic location – here, the U.S. District Court for the Eastern District of Missouri – is the proper court to hear the case.

Section 4.  The Parties

This section describes all of the parties to the lawsuit – both plaintiffs and defendants.  The plaintiffs must explain why each plaintiff is included in the lawsuit, and why each defendant is included in the lawsuit.

The complaint lists thirteen (13) individual plaintiffs, along with their injuries, and a brief explanation of each plaintiff’s exposure to radioactive waste.

The injuries include:

• Stage III Glioma (brain cancer);
• two (2) cases of ovarian cancer;
• ovarian tumors;
• throat and neck cancer;
• Hodgkins Lymphoma;
• cervical cancer and related hysterectomy;
• breast cancer;
• Squamous Cell Carcinoma (cancer) of the throat;
• kidney cancer;
• two (2) cases of prostate cancer;
• Ewing Sarcoma and related sterility;
• pancreatic cancer;
• Gastrointestinal Stromal Tumor;
• lung cancer and colon cancer.

The exposure to radiation includes:  living in the exposed area for anywhere from eight (8) to forty-eight (48) years;  playing in the creek;  playing in fields and playgrounds next to the creek;  eating produce grown near the creek;  extensive yard work in the affected area;  general outdoor recreation near the creek;  living in a home and playing in a yard on the creek bank;  catching crawdads and tadpoles in the creek;  having the creek flood into the plaintiffs’ homes or basements.

The complaint lists fifteen (15) defendants, all corporations which processed, distributed, transported, stored, handled or disposed of hazardous, toxic and radioactive materials,  or which own(ed) or acquired another company that processed, distributed, transported, stored, handled or disposed of hazardous, toxic and radioactive materials.  (When one company acquires another, it takes over its assets and its liabilities, including legal liabilities.)

Section 5:  Relevant Facts

Here, the plaintiffs explain their version of the facts of the case.

The defendant businesses processed, distributed, transported, stored, handled or disposed of radioactive materials.  The nuclear processing facilities and the hazardous, toxic and radioactive waste residues they created were owned, operated and solely controlled by the defendants.  Because the defendants were reckless and negligent in handling the radioactive materials, the materials leaked into the air, water and soil in and around their homes.  This exposed the plaintiffs to the radioactive waste, and made them sick.

Next, the plaintiffs explain the history of the radioactive contamination of Coldwater Creek, beginning with the work on the “Manhattan Project” in St. Louis during World War II, the processing of uranium ore through the 1950s in downtown St. Louis (SLDS), and the storage of radioactive waste at the St. Louis Airport site (SLAPS) beginning in 1946.  They describe the transportation of waste from SLAPS to a site on Latty Avenue in Berkeley, Mo., which later became the Hazelwood Interim Storage Site (HISS).  This resulted in the contamination of HISS and the haul routes between SLDS, SLAPS and HISS.  The U.S. government later added these sites to the Formerly Utilized Sites Remedial Action Progam (FUSRAP) – sites that the government determined need to be ‘cleaned up.’

The complaint explains in detail the contamination of the North St. Louis County Sites.  It describes the airport site (SLAPS) as 21.7 acres (bordered by McDonnell Boulevard, Banshee Road, the Norfolk Southern Railroad and Coldwater Creek) that was primarily used to store radioactive waste in bulk on the open ground, or buried near Coldwater Creek.  The contaminated haul routes include Coldwater Creek, former ball fields, Eva Avenue, Frost Avenue, Hazelwood Avenue, McDonnell Boulevard and Pershall Road.

The complaint also lists the Madison Site as a contaminated site.  The complaint states that the Madison site is located across the river from the downtown site (SLDS) in Madison, Illinois, and is the location where Dow Chemical operated a uranium extrusion and rod-straightening facility.

The West Lake Landfill has also been added to the FUSRAP list of contaminated St. Louis sites.  The landfill consists of 200 acres at 13570 St. Charles Rock Road in Bridgeton, Mo., and is the disposal site for thousands of tons of radioactive waste from the airport site (SLAPS).  Radioactive soils are buried at depths of 7 – 15 feet over 24 acres.  The Landfill is upstream from the sources of drinking water for Florissant, North County, and St. Louis, and lies partially within the Missouri River floodplain.  Groundwater beneath the landfill shows radiation levels above the maximum allowed by law.  The Landfill was placed on the federal government’s National Priorities List in 1989.

Section 6.  Site History

This section describes the site histories in more detail, and describes how defendant corporations are connected to the sites.

It explains that rain water drains from contaminated sites directly into Coldwater Creek.  When parts of Coldwater Creek were backfilled to support construction,  soil and sediment were contaminated by waste from the airport site (SLAPS).

Waste materials were removed from the airport site (SLAPS) and the Latty Avenue site (HISS) during the 1960s and 1970s.  In 1973, 47,700 tons of contaminated material was disposed of into the West Lake Landfill.  The contaminated soil was routinely used to cover municipal waste and for other landfill operations.

Section 7.  Investigation of Contamination

This section describes government investigations of contamination at the North County sites, beginning with the addition of the airport (SLAPS) and Latty Avenue (HISS) sites to the Environmental Protection Agency’s National Priority List in 1989.  In 1994, the Department of Energy (DOE) issued a report concluding that the soil at the North County sites is contaminated.  Additional DOE investigations in 1995 confirmed widespread radioactive contamination in Coldwater Creek, along the haul routes (including vegetation, soil and ground water), and at the North County sites.

Section 8.  Topography and Drainage of Contaminants

This section of the complaint describes the physical landscape at the various contaminated sites.  Because of this landscape, rain water flowing off the  contaminated sites becomes contaminated, and then drains into Coldwater Creek.  Because the water runoff into Coldwater Creek has increased due to development, the creek floods more often.  The contaminated water then enters areas beyond the banks of the creek.  Investigations show that contamination levels at the North St. Louis County sites exceed federal dose limits.  Because of the long half-life of radioactive waste, people living near the contaminated sites have been, and will continue to be, exposed to hazardous substances.

Section 9.  Causes of Action

This section explains the specific laws that defendants are accused of breaking, and how the defendants’ liability should be measured.  This part is very confusing for non-lawyers, because the causes of action are often various legal theories of how the case should be handled by the court.  Plaintiffs have the right to plead causes of action that are mutually exclusive of one another, so that if the court rejects one, it could still accept the other.  For example, the counts in this case include three various types of negligence.

     Count 1.  Violations of the Atomic Energy Act and the Price-Anderson Act. 

Under the Atomic Energy Act, companies engaged in the development, use and control of atomic energy are required to get a federal license allowing them to engage in these activities.  All of the defendants to the lawsuit (or their predecessors or agents) obtained this license.

Under the Price-Anderson Act, any release of by-product, special nuclear, or source materials causing bodily injury, sickness, disease, death, loss or damage to property, or loss of use of property constitutes a ‘nuclear incident.’  The complaint claims that defendants have caused a nuclear incident or series of nuclear incidents.  Because the plaintiffs were injured as a result of a ‘nuclear incident,’ under the Price-Anderson Act it is considered a ‘public liability action.’  Under the act, when a public liability action occurs, the court must follow the laws of the state in which the nuclear incident occurred in to decide the case – here, Missouri law.

     Count 2.  Negligence

The Defendants processed, handled, stored, and/or disposed of hazardous, toxic and radioactive waste materials at the St. Louis FUSRAP sites in a reckless, negligent and illegal manner.  As a result, hazardous, toxic and radioactive materials were released into the communities surrounding the FUSRAP sites, including Berkley, Hazelwood, and Florissant, Mo.  Exposure to these materials injured the plaintiffs.

The Defendants had a duty to warn or notify plaintiffs of the potential danger of exposure to hazardous, toxic and radioactive materials.  Defendants had a duty to warn or notify plaintiffs that the contaminants had been released, and were likely to be released in the future.  Defendants failed to act to prevent their releases from harming plaintiffs.  Defendants knew or should have known that the manner in which they were handling the contaminated materials would result in actual injuries and increased risks to the population.

Defendants’ negligence was the direct cause of the plaintiffs’ injuries.

     Count 3.  Negligence Per Se

The defendants violated several statutes (laws passed by Congress) and regulations (rules created by the government agency responsible for carrying out the laws passed by Congress) related to the handling of radioactive waste.  Defendants violated the Atomic Energy Act, the Price-Anderson Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Toxic Substances and Control Act (TSCA), the Resource Conservation and Recovery Act (RCRA), the Emergency Planning and Community Right to Know Act (EPCRTKA), and regulations related to each act.  The Defendants also violated Illinois air and water quality protection and waste disposal laws.  If the defendants are found to have violated these statutes and related regulations, they are automatically found to have injured the plaintiffs.  The violation of these laws in and of themselves caused plaintiffs injuries, even if plaintiffs cannot prove a direct connection between their injuries and the defendants activities.

     Count 4.  Absolute or Strict Liability

Defendants activities at the St. Louis FUSRAP sites were abnormally dangerous.  Even though defendants knew that their activities were abnormally dangerous, they conducted those activities near residential neighborhoods like those of Berkeley, Hazelwood, and Florissant, Mo.  The abnormally dangerous activities of defendants directly injured the plaintiffs.  Because the activity is so dangerous, the defendants need not have intended to harm anyone in order to be found liable. (Normally, the defendant must have intended to hurt someone – such as hitting someone in the head with a baseball bat.)

     Counts 5, 6 and 7.  Intentional, Reckless, or Negligent Infliction of Emotional Distress

The defendants’ conduct caused the plaintiffs mental anguish, severe emotional distress, and serious mental injury.  Different levels of proof are required to determine whether the emotional distress was inflicted intentionally, recklessly or negligently.  The plaintiffs allege all three types in the complaint, so that even if they can’t meet the highest level of proof (intentional), they still have a chance of proving one of the lower levels (reckless or negligent).

      Count 8.  Medical Monitoring

The plaintiffs are requesting (under Missouri state law) that defendants provide medical monitoring due to the increased risk of injury due to exposure to radioactive waste.  The tests are effective, easy, cost effective, and make the early detection and treatment of injury or disease possible and beneficial.  Such a medical monitoring program is reasonable and necessary to continue to monitor existing diagnosed conditions and for early detection of injuries that have not yet been diagnosed.  Modern scientific principles, medical literature and expert opinion support this type of program.

Section 10.  Damages

This section describes how the plaintiffs were damaged – expenses, physical impairment, permanent partial disability with a risk of permanent total disability in the future, the need for current or future nursing care or other domestic assistance, loss of a vibrant and active lifestyle, and the loss of enjoying a full and complete life.  Plaintiffs are seeking punitive damages (monetary payment by the defendants as punishment for their acts) and compensatory damages (money to make up for expenses incurred due to their illnesses).  Specifically, plaintiffs are seeking monetary payment for:  reasonable and necessary medical expenses;  lost earnings and net accumulations;  loss of care, maintenance, services, support, advice and counsel that plaintiffs provided their family members;  pain and suffering;  emotional distress;  punitive damages;  costs related to the lawsuit and reasonable attorney’s fees.

Section 11.  Prayer for Relief

Here, the plaintiffs simply summarize what they want the court to do.  In this case, the plaintiffs want the court to grant them general damages, special damages, punitive and exemplary damages, reasonable attorneys’ fees and costs, prejudgment interest from the date of exposure, post-judgment interest on the judgment, and injunctive relief – forcing the defendants to stop the activities that caused the plaintiffs harm.

The complaint is then signed by the plaintiffs’ attorneys:

Eric J. Carlson and Christopher W. Byron

Byron Carlson Petri and Calb, LLC

411 St. Louis Street

Edwardsville, IL  62025

Telephone (618) 655-0600

Facsimile (618) 655-4004

It also lists Co-Counsel as:

Mark J. Bern and Kevin J. Lawner

Napoli Bern Ripka Shkolnik & Assoc., LLP

The Empire State Building

350 Fifth Avenue, Suite 7413

New York, NY  10118

212-267-3700

Coldwater Creek Lawsuit – Introduction

The Coldwater Creek lawsuit officially began on Tuesday, February 28, 2012 when the plaintiffs filed a complaint with the U.S. District Court for the Eastern District of Missouri.

Formally, the complaint claims that certain companies engaged in “reckless and negligent conduct involving hazardous, toxic, and radioactive materials.” In more basic terms, the case claims that individuals were injured by nuclear waste that contaminated Coldwater Creek in North St. Louis County, Mo. because those companies did not properly handle hazardous, toxic, and radioactive materials.

The official name of the lawsuit is McClurg et al v. MI Holdings, Inc. et al. The court assigned it a Case Number, which is 4:12-cv-00361. You can use the official name and case number to obtain copies of the documents filed in the case that are public record.

A case filed in U.S. District Court is a federal lawsuit, so the case will be heard by a federal judge – a judge who was nominated by the President and approved by the U.S. Congress. The Coldwater Creek case was filed in federal court because the plaintiffs claim that federal laws – laws passed by the U.S. Congress in Washington, D.C. – have been violated. In comparison, cases filed in state court are heard by state court judges who are usually appointed by the Governor. State law cases are only about state laws – laws passed by the state legislature, here, in Jefferson City, Mo.

The Coldwater Creek lawsuit is a civil case. No one goes to jail if they lose a civil case. Instead, they may be ordered to pay damages – money – to the plaintiffs. (Criminal cases may only be filed by the government, not by individual plaintiffs.) In civil cases, there are different levels of proof required before the court may determine that a company or individual is guilty. It is less proof than the ‘beyond a reasonable doubt’ standard that we see on criminal law television shows.

In this case, the plaintiffs are a group of individuals who claim they were injured by nuclear waste that contaminated Coldwater Creek. Some of the plaintiffs are named individuals who describe their injuries. McClurg in the name of the lawsuit refers to the name of the lead plaintiff. Et al refers to the other plaintiffs, whose names are also listed on the complaint. More plaintiffs with similar injuries caused by similar circumstances may be added later.

The complaint is a brief explanation of why the plaintiffs are suing. It does not make arguments supporting the plaintiffs case, or include evidence supporting their claim. It lists the defendants, and explains why they are being sued. The plaintiffs must formally provide the defendants with a copy of the complaint.

In this case, the defendants are a group of companies and corporations who the plaintiffs claim were involved with the production, storage and transportation of nuclear waste in North St. Louis County. The plaintiffs claim that the defendants were reckless and negligent in handling hazardous, toxic and radioactive materials. The defendants include: MI Holdings, Inc.; Mallinckrodt, Inc.; Associates First Capital Corp.; Citigroup, Inc.; Cotter Corp.; Commonwealth Edison, Co.; P & H Construction Company; Jarboe Realty and Investment Company, Inc.; DJR Holdings, Inc.; The Dow Chemical Co.; Covidien, Inc.; Exelon Corp.; Exelon Generation Co., LLC; Rock Road Industries, Inc.; and Bridgeton Landfill, LLC.

Hopefully this explains the basic aspects of the case. A summary of the complaint itself will follow soon. Please feel free to respectfully post questions and comments below – but please read the About this Blog page first. Folks who find it necessary to post inappropriate comments will be blacklisted.