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March 23 — A federal jury in Missouri awarded $20.6 million March 22 to a 27-year-old woman who claimed she developed an autoimmune disorder from exposure to hazardous waste that had been dumped illegally near her home by a manufacturer of ball bearings (Kirk v. Schaeffler Group USA Inc., W.D. Mo., No. 3:13-cv-0503, 3/22/16).
The lawsuit claimed that the company, Schaeffler Group USA Inc., also known as FAG Bearings Corp., had dumped around 40 tons per year of trichloroethylene (TCE), a solvent used in manufacturing to clean machine parts, on the property around its plant near Joplin, Mo., between 1971 and 1982.
The plaintiff, Jodelle Kirk, whose childhood home abutted the FAG Bearings property in Joplin, developed autoimmune hepatitis, a rare and life-threatening disease, from exposure to TCE in utero, the lawsuit said.
As a result of the disease, Kirk's health is dependent on a regimen of chemotherapy drugs, according to her attorney, Kenneth McClain, a partner with Humphrey, Farrington & McClain in Independence, Mo. Kirk will likely need a liver transplant in the future as a result of the drugs, which also have destroyed her ability to become pregnant, he said.
“FAG Bearings has a responsibility for their conduct because no 27-year-old woman ought to have to face life under this cloud,” McClain said. “This did not have to happen.”
The verdict included $7.6 million in actual damages and $13 million in punitive damages, McClain said.
The verdict came less that two weeks after the court threw out two of the plaintiff's four claims, those for strict liability and negligence per se. The court allowed the case to proceed on Kirk's claims for negligence and for punitive damages (48 DEN A-26, 3/11/16).
In a statement, Lynn Kier, vice president of communications for Schaeffler Group, said, “We respect the jury's service, however, [we] are disappointed with their decision as we do not believe the facts and evidence support the plaintiff's claims. We are in the process of reviewing all of our legal options to appeal this decision.”
FAG Bearings previously entered into a consent decree in 2006 with the state of Missouri over TCE contamination originating at the Joplin plant. The consent decree required the company to pay $183,000 to the state and to implement a remediation plan selected by the state and the Environmental Protection Agency.
According to a press release from the office of then Attorney General Jay Nixon (D), the TCE contamination was first discovered in 1991 and led to the installation of a permanent drinking-water system for area residents and for more stringent well-drilling regulations for the area, which is located within an EPA-designated Superfund site.
The consent decree called for monitoring at specific sites, and for additional remediation where needed, the press release said.
But as for the remediation plan, McClain told Blooomberg BNA March 23 that it amounted to little more than “letting God take care of it for the next 150 years or so.” “The company absolutely bamboozled the state Department of Natural Resources on this one,” he said. “They said it would be too difficult to do pump and treat, and got the agency to go for natural attenuation instead. So they really haven't had to do much at all.”
According to the lawsuit, FAG Bearings used solvents and degreasers containing volatile organic compounds in its manufacturing operations at the Joplin plant. One of these was TCE, a chemical degreaser.
TCE can enter the human body in a variety of ways, including ingestion, inhalation and skin contact, the lawsuit said. TCE can cause cancer, central nervous system impacts and other bodily injury, it said.
TCE also leaches into groundwater “fairly easily,” the lawsuit said.
From 1972 to 1982, FAG Bearings used large quantities of TCE in its operations, as evidenced by the fact that it purchased at least 30,000 gallons of TCE between 1977 and 1982. Each month, the company poured around 3 barrels of VOC sludge containing TCE onto the ground in a wooded area on the Joplin plant site, the lawsuit said.
The company also disposed of VOC sludge from its cleaning system by pumping it into a sewage lagoon on the property. It spilled over 10,000 gallons of VOCs at the plant between 1979 and 1983, stored VOCs and TCE in leaking barrels on the property, negligently released TCE vapors into the air, and lost TCE into drains that discharged into a ditch on the plant grounds, it said. The company was unable at the time the lawsuit was filed to account for more than 30,000 gallons of TCE that it had purchased, the lawsuit said.
TCE contamination of property and water is not discoverable by a property owner without the use of “extraordinary measures,” the lawsuit said. Kirk's family had been told in 1992 that no TCE had been detected on their property or in their well, which led them to believe that they had no reason to seek an alternate supply of water, it said.
The lawsuit also argued that the statute of limitations was tolled because Kirk could not reasonably have discovered the toxic nature of her injuries and disease within the statute of limitations period. Although she was diagnosed with autoimmune hepatitis in 2002, it was not until 2012 that a doctor linked her condition to TCE, it said. Evidence of the autoimmune-related effects of TCE exposure did not enter the medical literature until 2009, it said.
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