Judge rejects Weyerhaeuser's motion to dismiss in toxic tort case

Michelle Massey, East Texas Bureau Mar. 20, 2008, 3:41am

TEXARKANA, Ark. -- U.S. Federal Court Judge Harry F. Barnes ruled against Weyerhaeuser's Motion to Dismiss in a case involving allegations that the Dierks plywood and lumber mill emitted hazardous substances and toxins into the environment.

Almost two hundred plaintiffs brought the class action against Weyerhaeuser on April 16, 2007, in the Texarkana division of the Western district of Arkansas.

The second amended complaint alleges that the plaintiffs were exposed to substances that include but are not limited to: "pentachlorophenol, dioxin/furans, benzene, acrolein, methylene chloride, PM-10, VOCs, acetaldehyde, formaldehyde and other toxins."

The plaintiffs believe the Dierks Mill and other Arkansas Weyerhaeuser facilities released these toxins, causing property damage, personal injuries and deaths. The plaintiffs allege that Weyerhaeuser knew of the "hazardous discharges" but failed to disclose this information to the plaintiffs or the appropriate state and federal entities.

The complaint states, "Defendants have known for years that the operations, waste management and emissions controls at the Dierks Mill are environmentally unsound and that, as a result, hazardous substances, including but not limited to the toxins at issue have migrated off-site, contaminating the adjacent residential community, including Plaintiffs' properties."

The complaint alleges that Weyerhaeuser breached its duty of care to the plaintiffs by failing to operate and properly maintain the Mill, failing to use ordinary or due care, failing to install effective pollution control devices, failing to monitor for potential emissions and failing to take adequate precautions with the hazardous substances and toxins.

Causes of action filed against the defendant include trespass, private nuisance, public nuisance, negligence, negligence per se, violations of the Arkansas Solid Waste Management Act, fraud, battery, unjust enrichment, wrongful death and survival actions.

In an opinion issued on March 12, the court held that Weyerhaeuser's response to plaintiffs' second amended complaint failed to include reference to Weyerhaeuser's motion to dismiss, thus rendering the motion moot.

Within his opinion, Judge Barnes wrote that even if the motion was not moot, it would be denied because the plaintiffs have stated sufficient facts to continue with the case.

In addition, within the opinion Judge Barnes ruled on Weyerhaeuser's request for a more definite statement. Weyerhaeuser alleged the plaintiffs' second amended complaint did not contain enough information regarding the plaintiffs' illness or causes of death, particular location of alleged exposure, which chemicals or other toxic materials to which the plaintiffs were alleging exposure and lack of facts supporting a violation of the Arkansas Solid Waste Management Act.

Judge Barnes ruled that the plaintiffs only needed to set out "a short and plain statement of the claim" and ordered the defendant to file its answer to the plaintiffs' second amended complaint within 10 days.

The plaintiffs are seeking monetary damages for property damage, personal injuries, medical expenses, medical monitoring, pain and suffering, mental anguish, emotional distress, lost earnings, loss of earning capacity, loss of enjoyment of life, inability of minors to attend school, lost value of service and contributions of minors, loss of enjoyment and use of property, loss in value and marketability of property, remediation and clean up expenses.

The deceaseds' estates are seeking pecuniary losses, loss of companionship and consortium, loss of parental guidance, emotional distress, funeral and burial expenses.

The complaint seeks injunctive relief "requiring Defendants to remediate the contaminated properties and take the necessary precautions to prevent future contamination/pollution."

The plaintiffs are seeking a jury trial. Judge Harry F. Barnes will preside.

Attorney Nicholas H. Patton and Geoffrey P. Culbertson of the Texarkana law firm Patton, Tidwell, and Schroeder, LLP. are representing the plaintiffs in their allegations. Other plaintiffs counsel includes South Carolina attorney J. Edward Bell, III of the Bell Legal Group and California attorney Nancy Seidler Eichler of the Masry and Vititoe law firm.

Case No. 4:07cv04037

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