Statute of Limitations Not a Bar andCourt reinstates TENORM lawsuit

Court reinstates TENORM lawsuit for deceased pipe yard workers injured by radioactive waste

Posted November 20, 2014
by Jim Orr

There is a small amount of natural radioactivity in almost everything natural. However, certain industrial practices can result in radionuclides being concentrated to such a degree that they may pose a health and safety risk to humans and the environment. “Technologically Enhanced Naturally Occurring Radioactive Materials” (or TENORM) refers to materials, such as industrial wastes or by-products that have been enriched with radioactive elements, such as uranium, thorium and potassium and any of their decay products, such as radium and radon.

Varying levels of TENORM can result from such activities as oil and gas exploration, mineral mining, phosphate fertilizer production, water treatment and purification, and paper and pulp production. There is growing concern that some workers have been or will be exposed to potentially dangerous levels of radiation from TENORM. The EPA has stated that it is concerned about TENORM because TENORM has the potential to cause elevated exposure to radiation and because people may not be aware of TENORM materials and need of more information about TERNORM materials.

The Fifth Circuit Court of Appeals has recently reversed the dismissal of claims by the survivors of deceased pipe yard workers in a lawsuit regarding TENORM. Coleman v. OFS, Inc., No. 13-30150, (5th Cir. Oct. 30, 2014), is a class action suit on behalf of pipe yard workers and surviving beneficiaries of pipe yard workers. The claims asserted arise out of the pipe yard workers’ occupational exposure to radioactive oil field waste materials including TENORM and other hazardous substances. The plaintiffs allege that, unknown to the workers, pipe cleaning, pipe maintenance, and yard maintenance resulted in their exposure to TENORM, which caused or contributed to the development of various diseases, health problems, and deaths. The defendants in the lawsuit are oil companies who contracted with employers of the workers, including Atlantic Richfield Company, BP Products North America, Chevron, Exxon Mobil, Shell and others. The lawsuit alleges that the defendants were aware of the dangers of TENORM and were aware of the workers’ exposure, but failed to warn the workers or the public of the environmental and health dangers.

Multiple defendants moved to dismiss the claims of many of the survivors based on the statute of limitations. Under applicable Louisiana law, “[i]f a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of [specified beneficiaries].” La. Civ.Code art. 2315.1. The defendants argued that all survival claims filed more than one year after the decedent’s death were untimely. The district court agreed and dismissed all such claims.

The plaintiffs argued that the one-year limitations period should not begin to run until a plaintiff discovers the connection between the decedents’ deaths and the toxic tort exposure. Louisiana draws a distinction between “peremptive” and “prescriptive” periods to bring legal claims. If the period is “peremptive,” the period is not subject to tolling or interruption and runs regardless of whether a plaintiff had knowledge of his cause of action. On the other hand, if the period is considered “prescriptive,” the period does not begin to run until the plaintiff has actual or constructive knowledge of the facts which would entitle him to bring suit. The plaintiffs argued that the one-year period provided by Article 2315.1 should be considered prescriptive and thus subject to tolling.

On appeal, the Fifth Circuit initially decided that it was unclear whether Article 2315.1 was prescriptive or peremptive and certified the question to the Louisiana Supreme Court. Meanwhile, that court decided the same question in another case. In Watkins v. Exxon Mobil Corp., 2013–1545 (La.5/7/14), 145 So.3d 237, reh’g denied (July 1, 2014), the Louisiana Supreme Court held that the time period in Article 2315.1 is prescriptive and not preemptive.

Accordingly, the Fifth Circuit followed Watkins and held that Article 2315.1 contains a prescriptive period. Coleman v. OFS, Inc., No. 13-30150. The court of appeals reversed the district court’s dismissal of the plaintiffs’ survival claims and remanded the case back to the district court for further proceedings.

- See more at: http://www.hop-law.com/court-reinstates-tenorm-lawsuit-for-deceased-pipe-yard-workers-injured-by-radioactive-waste/#sthash.VCmgUY9c.dpuf

Another lawsuit accuses Mallinckrodt of dumping nuclear waste, causing cancers

Sep 8, 2014, 2:03pm CDT UPDATED: Sep 8, 2014, 2:33pm CDT

The latest of 28 related federal lawsuits filed against Mallinckrodt alleges that people exposed to a predecessor company’s radioactive waste sites in north St. Louis County became sick with cancers and sometimes died from them.

Mallinckrodt in the 1940s and 1950s transported radioactive materials from its downtown St. Louis facility to a 22-acre site north of Lambert-St. Louis International Airport, according to the Sept. 5 suit, which names eight plaintiffs.

The areas around haul routes, including Coldwater Creek, which runs from St. Ann to the Missouri River, were contaminated, according to the suit.

The suit says two of the plaintiffs who worked near the waste sites — William Frazier and Harold Banovz, both former McDonnell Douglas Corp. employees — contracted cancer and died. They are suing through relatives.

The other plaintiffs — Maureen Kolkmeyer, William Fatherton, Eric Kluempers, Bruce Calvin, Stephen Kofron and Kurt Zwilling — either lived or worked in the affected areas and have been diagnosed with cancer, according to the suit.

The suit also names as a defendant Cotter Corp., which it says transported radioactive waste in the 1960s to a property at 9200 Latty Ave.

Kenneth Brennan of Torhoerman Law LLC, Collinsville, Illinois, has filed the more than two dozen related lawsuits representing about 150 plaintiffs. The first came in February 2012. None have settled.

“The damages are significant,” Brennan said. “Virtually all involve people who are alleging cancer and/or death.”

Nearly all of those cases have been consolidated, and continue to be heard before U.S. District Judge Audrey Fleissig.

A Mallinckrodt spokeswoman said the company would not comment.

Mallinckrodt has gone through many ownership and name changes since it was founded in the 19th Century.

Gearing Up for Toxic Tort Litigation

HAZARDOUS SUBSTANCES/POLLUTANTS/TOXIC INJURY

Toxic Torts:We are all affected and involved

By Lawrence Landskroner

As we all know, the wealthy corporations can take care of themselves. Money enables them to hire very large law firms to take care of all their legal needs. Unfortunately, the common person cannot afford a lawyer unless the lawyer agrees to be paid from a portion of any recovery.

Recognizing a new group of aggrieved victims, there has been a revolution occurring in the law concerning the responsibility for injuries sustained from exposure to hazardous substances or environmental contamination. This new theory of law has been labeled the toxic tort. The critical question is whether a producer of hazardous chemicals is responsible for the reasonable use or misuse of its products beyond the immediate purchasers or people exposed to them. Fortunately, for the innocent victims, an affirmative answer is evolving.

I just returned from the American Trial Lawyers Convention in Seattle, Washington, where I spent a week studying the latest state of the law concerning toxic torts. The up-and-coming new area of responsibility will be the poisoning and the abuse of the public by large corporations concerning the irresponsible dissemination of their products and/or wastes. Most lawyers fail to recognize where the responsibility lies regarding the misuse and use of hazardous products because of their failure to look to the manufacturer, marketer, and retailer of the culprit chemical or product.

Cleanup of hazardous wastes and the legal liability from exposure to such hazardous substances is unquestionably the major environmental problem of our times. There has been much furor over this problem on the federal and state level as a result of the number of lawsuits regarding toxic tort product liability claims.

We all know that corporations, because of improper disposal of hazardous wastes, are contaminating the atmosphere, rivers, and streams. In addition, corporations are causing innocent members of the public to contract a variety of fatal diseases. Recently, the negligent cleanup of a train derailment and the resulting chemical spill caused a jury to render a verdict of $11.3 million compensatory and punitive damages. The award against the railroad was for the terminal lung cancer suffered by a 63 year old man and the damage to his property because of chemical contamination resulting from a train derailment.

Very recently a federal court rendered a judgment against the United States government and all of its agencies for cancer caused by fallout due to a toxic testing in Utah more than 30 years before. Prior to this ruling, one could only go back in time several years before the statute of limitations would terminate the right of recovery. The people downwind of the atomic testing sued in federal court proving that the federal government and its agencies had concealed the facts surrounding their knowledge of the dangers of the radioactive fall out. Investigation showed that the government actively concealed the dangerous nature of the radioactive waste from the public and gave the medical false information concerning the dangers in order to conceal the hazard that they had created. The innocent victims who sustained cancer due to their exposure to the radioactive wastes, dying more than 30 years after the exposure, were able to recovery from the government for its abominable activities.

One of the new dangers arising that is considered to be ultrahazardous is the use of fire-retardant building materials, furniture and fire extinguishers. The fire-retardent chemicals found in these products have been shown to cause extremely toxic effects to people who are exposed to these chemicals. These chemicals are just as deadly as the highly publicized Agent Orange (the most deadly and potent synthetic known to man), which has now been found to cause many side effects. There will be a new stream of litigation in the areas of cancers, birth defects, and other injuries arising from the use of these products.

Billions of dollars are in the process of being disseminated to people injured from contamination by dioxins ranging from accidental spills, domestic herbicide spraying, and other contamination. Some include not only standard claims for medical problems but claims for "cancerphobia." Some 2,300 Vietnam veterans who opted out of a class action over the dioxin-contaminated herbicide are filing separate lawsuits. Some 12 million gallons of the defoliant were sprayed in Vietnam from 1965 to 1970. One of the important considerations raised at the ATLA seminars was that, because of rapid scientific advances in developing human epidemiological studies, more and more diseases are being tied to toxic materials.

The long latency periods for the discovery of cancer and other injuries can no longer be used as a basis for denying legal responsibility. In response to the atomic bomb testing of the 1940's, 2,400 people banded together and brought suit against the U.S. government. Those people had been exposed to the radioactive fallout in the 1940's, but the recognition and extent of their injuries had only recently been discovered. The Court permitted the case to proceed even though the statute of limitations had already lapsed. A statute of limitations sets the time period in which a claim remains valid; once the statute has run, the claim is barred. The court's decision had a great impact in this area in that it decided that the government could not escape liability by invoking a statute of limitations defense, but that the Court would look at the date at which time the injury was discovered.

There are now a number of experts available who have testified that the medical injuries caused by the dioxins were the result of the contamination by this chemical. Many people have different symptoms and susceptibility to these types of chemicals and pesticides, and the harm manifests itself in different ways. Testing done and reported in cases such as the Love Canal case in Niagara Falls, New York, and the Times Beach, Missouri case pinpoint the cause and effect and make more certain the responsibility for the dissemination of these dangerous substances.

The Environmental Protection Agency has cited 19 states where herbicide manufacturing processes created a high probability of dioxin contamination. What is interesting about these cases is that where the company knows, should have known, or conceals testing that shows a danger, and evidence indicates that there was a concealment or knowledge of the hazard, one can obtain punitive (punishment) damages that will penalize the company in favor of the plaintiff or people injured. These awards encompass injuries from people suffering from lung disease, cancer, and other side effects of dangerous toxic agents. One illustrative case is Atkins vs. Monsato Chemicals where 127 plaintiffs asked for damages amounting to over $700 million for the concealment of 2, 4, 5,-T hazards (deadly type toxin) from workers and the continued use of the unsafe products and manufacturing process for over two decades. There is evidence to show in those cases that punishment damages should be awarded.

At the trial, all one has to do is to show the jury that the product was dangerous, that it caused the injury, that the side effects from those exposed were concealed, and then allow a jury to contemplate its award of compensation and punishment. In a case I recently tried. (David L. Shumaker vs. Oliver B. Cannon & Sons, Inc.) decided by a Lake County jury in May of 1984, the jury awarded half a million dollars for lung damage and $250,000 for punishment damages for a carpenter in CEI's atomic reactor in Perry, Ohio, who was sprayed with a substance containing methylene chloride. The jury felt that the company should be punished for failing to exercise the appropriate level of care and as such awarded punitive damages.

Unfortunately, most lawyers overlook the probabilities of an action for personal injuries arising out of exposure to pollutants. Part of the reason for this is the fact that perhaps the area was not previously identified. Now the American Bar Association and the American Trial Lawyers Association have both set up sections on "toxic torts." With the increased amount of litigation to be set forth in the subsequent court cases and settlements, an awareness will generally permeate the trial bar, and more litigation will hopefully cause more polluters and companies manufacturing dangerous chemicals and drugs (because of the economic adversity resulting from the verdicts) to shape up their act. Only through such actions will we all be protected in some way against the further abuse of ourselves and our progeny.