The Madison County Record Sep. 25, 2014, 10:23am

Toxic exposure suits that lay dormant for four years sprang into action this year and multiplied into thousands in St. Clair County circuit court.

Cerro Flow Products, a recycler of copper in Sauget, faces 22 exposure suits that started in 2009 and 2010, plus 113 new suits with up to 99 plaintiffs in each.

Cerro advised Chief Judge John Baricevic in June that, “The mediation between Cerro and the plaintiffs was unsuccessful and has now concluded.”

The legal team suing Cerro includes Lloyd Cueto and Christopher Cueto of Belleville.

It also includes partners Paul Schoen and Troy Walton of East St. Louis, Larry Wright of Austin, Texas, and five lawyers from Environmental Litigation Group in Birmingham, Ala.

Some plaintiffs allege physical injuries, some allege property damage and some allege both.

The first suit, in 2009, proposed a class action against Cerro, Monsanto and others.

Defendants removed it to federal court, where Cerro sought jurisdiction under the Class Action Fairness Act and Monsanto argued it acted at the direction of federal officers.

Plaintiffs moved for remand to St. Clair County, and District Judge Phil Gilbert granted it.

He found the class action law allowed exceptions for cases of local controversy. He found Monsanto failed to connect its actions to federal direction.

Monsanto meanwhile had removed other suits to federal court, but Chief District Judge David Herndon remanded one and Monsanto surrendered on the rest.

Plaintiffs by then had filed suits in St. Clair County for more than 1,000 plaintiffs.

Defendants moved to require an individual file for each plaintiff, and Monsanto counsel Bruce N. Cook of Belleville pressed the point at a hearing before Baricevic.

In an order of May 3, 2010, Baricevic wrote, “Defendants, speaking primarily through Mr. Cook, laid a good foundation for severing cases.”

“The arguments made by the Defense that differentiate defendants by the type of cancer, other personal injuries, property damage and residence of the plaintiff, all struck a sympathetic chord,” he wrote. 

“It is my expectation that motions to sever will be granted at some stage during the proceedings.”

Plaintiff lawyers then filed a wrongful death suit for representatives of 1,219 dead persons.

On Sept. 14, 2010, Baricevic stayed all proceedings without explaining why.

Every few months through this spring, he ordered the stay to continue.

This May, the plaintiff team began flooding his court with suits against Cerro.

In June, Cerro moved to lift the stay so it could move to sever plaintiffs.

Baricevic lifted the stay against Cerro in July, but kept it in effect for other defendants.

He assigned some cases to Circuit Judge Andrew Gleeson and some to Circuit Judge Vincent Lopinot, and he directed Cerro to file a severance motion.

Cerro moved for severance in August, arguing that plaintiffs lived in many locations at many distances from Cerro over many periods of time.

“The claims of plaintiffs here present highly individualized issues of exposure, causation, and damages,” wrote Thomas Ysursa of the Becker Hoerner firm in Belleville.

“Proof of proximate causation in the case of each plaintiff involves highly individualized variables such as to which substance the plaintiff was exposed, time and duration of the exposure, location at the time of exposure, age, activity, and medical history,” he wrote.

He wrote that the variety of diseases and the multitude of potential causes for them demonstrated that joinder is inappropriate.

“Diabetes, different forms of heart disease, and pulmonary conditions, just to name a few of the plaintiffs claimed injuries, can have a variety of causes or origins including genetics, diet, physical condition, and age,” he wrote.

He wrote that property damage claims likewise involved separate and distinct circumstances.

Plaintiffs must respond by Oct. 20, and Cerro must reply by Nov. 20.

Baricevic has set a hearing on Dec. 9, in Gleeson’s court.

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