Heather Isringhausen Gvillo Nov. 3, 2015, 2:21pm


The Fifth District Court of Appeals affirmed St. Clair County Circuit Judge Andrew Gleeson’s order granting another stay in a putative class action against Cerro Flow alleging contamination in Sauget.

The appellate court found that the trial court did not abuse its discretion when Gleeson granted stay in the case and remanded the suit with directions to set a status hearing.

Justice Melissa Chapman delivered the Oct. 27 Rule 23 decision, with Justice Thomas Welch concurring and Justice James Moore specially concurring.

According to the appellate decision, Defendant companies Cerro Flow Products Inc., Pharmacia Corporation, Pharmacia & Upjohn Co, LLC, Solutia Inc., Monsanto Co., Pfizer Inc. and Monsanto AG Products LLC allegedly released millions of tons of PCBs, dioxins and furans into the environment as far back as 1935.

The sites where these companies allegedly released these substances are located in St. Clair County, predominantly in the Village of Sauget, including W.G. Krummich Plant, the Cerro Flow facility and a 90-acre landfill operated by Sauget & Co.

Plaintiffs Vernon Lee Anderson Sr., Ernestine Lawrence, Katie Burnett-Smith, Martha Emily Young, Marcella Phillips and Bernice Laverne Collins filed a seven-count putative class action on Feb. 10, 2009, in the St. Clair County Circuit Court.

In their complaint, the plaintiffs allege that the release of these substances has created and will continue to create health risks for residents. They also allege the substances have contaminated and will continue to contaminate real property within a two-mile radius of the release sites.

The plaintiffs claim the Monsanto defendants concealed the health risks and contamination and conspired with Industrial Bio-Test Labs in Northbrook to certify that the substances were noncarcinogenic. However, they allege evidence reveals that the substances were carcinogenic and that the certifications were fraudulent. Despite their alleged evidence, they claim the Monsanto defendants continue to deny that there is any threat to area residents’ health or property.

As for Cerro Flow, the plaintiffs claim the defendant has a copper recycling operation at its Sauget facility. They also claim the defendant scrapped PCB transformers and drained manufacturing wastewater and PCB oil into Dead Creek Segment A, which is located on the Cerro Flow site, and discarded these substances at the landfill.

The plaintiffs claim adjacent communities were contaminated when the substances spread through smokestack emissions, wind erosion, smoke from fires in Monsanto waste piles and other airborne methods.

As a result of the alleged contamination, the plaintiffs filed their class action. They are represented by Robert Leslie Palmer, Gregory A. Cade, H. Gregory Harp, Christina E. Wall and Mark L. Rowe of Birmingham, Ala. They are also represented by Paul G. Schoen of Schoen, Walton, Telken and Foster in East St. Louis and James L. “Larry” Wright of Austin.

In addition to this class action, many of the same plaintiff attorneys have also filed 134 mass tort actions with over 12,000 plaintiffs against Cerro Flow in St. Clair County. On Sept. 14, 2010, the St. Clair County trial court stayed this class action to focus on the individual cases. The parties agreed to extend the stay seven times.

Mediation came to an unsuccessful end in 2014 with respect to Cerro Flow, but the Monsanto defendants were able to reach a settlement with the class.

Then on July 8, 2014, the plaintiffs and Cerro Flow consented to an initial case management order, which lifted the agreed-upon stay.

By Aug. 26, 2014, Cerro Flow submitted its proposed case management order. That same day, the plaintiffs filed a motion to stay the case, seeking an entry of a case management order that would not mandate class certification before May 19, 2017.

“The plaintiffs argued that the mass actions of their other clients were more advanced than this proposed class action. They argued that legal experts believe that staying a proposed class action to allow the advancement of more mature individual cases is beneficial to the overall legal process,” the appellate decision states.

Then on Nov. 12, 2014, the court entered an order granting the motion to stay without specific findings or explanation.

Cerro Flow appealed.

The defendant argues that further stay would be prejudicial because of the statute of limitations, noting that the plaintiffs filed this case more than five years prior to their motion.

The appellate court disagreed, stating that while the case was filed more than five years ago, the class action was stayed for four of those years and the defendant agreed to each stay.

Cerro Flow also argued that the plaintiffs’ maturity argument was misplaced because this case was factually different and the individual cases are not more advanced than the class action.

The appellate court disagreed, concluding that the trial court did not abuse its discretion by failing to adress the four factors required to consider before ruling on a motion to stay – comity, prevention of multiplicity, vexation and harassment.

“While there are numerous cases pending against Cerro Flow based upon the same emission of substances in the same geographic area, these particular plaintiffs are not parties in those cases.”

The appellate court also concluded that the plaintiffs did provide an argument of hardship, noting that all parties used the four-year stay in order to advance the individual cases. And the plaintiffs could use the discovery from the individual cases to proceed with the class action.

“Forcing these plaintiffs to move forward with their proposed class action case in this factual context would be inequitable,” Chapman wrote.

And while Cerro Flow disagrees that the individual cases are more advanced than the class action, the parties determined there was enough discovery to warrant a settlement with Monsanto. Cerro Flow had access to those same documents.

The appellate court affirmed Gleeson’s order and remanded the case with directions to set a status hearing to determine the necessity of a continued stay.

“Overall, we note that a trial court judge has the inherent power to control the disposition of cases in his court. A trial court judge has vast discretion to manage his docket. The deference given to a trial court’s order to grant or deny a stay is based upon the judge’s own knowledge of his trial dockets and overall caseload,” she continued.

“From a review of the transcript of the hearing on the plaintiff’s motion to stay, we do not find strong affirmative evidence that Judge Gleeson was unaware of the law or chose not to apply the law. Judge Gleeson informed the parties that he had an obligation to Cerro Flow and to all other parties’ cases in his courtroom to ensure that he had ‘some kind of meaningful and efficient manner’ to control his docket. He expressed concern that a stay of this case would not enhance judicial economy.”

Moore concurred with a majority of the decision, but he expressed his concern that the interests of the class action plaintiffs are different than the interests of the individual plaintiffs.

“While I agree that the discovery taking place for the individual cases could serve to aid the plaintiffs in the class action, I believe it is important to ensure that no conflict of interest arises when formulating any global settlement with regard to the individual cases. Additionally, the circuit court and the plaintiffs’ attorneys ought to be mindful that time is of the essence in protecting the proposed class’s interests in this matter, as the allegations involved are serious,” Moore wrote.

St. Clair Circuit Court case number 09-L-73

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