MADISON - ST. CLAIR RECORD

Lawyers who sued Sauget copper recycler Cerro Flow Products for more than 10,000 plaintiffs argue that they shouldn’t have to pay a filing fee for each plaintiff.

Paul Schoen of East St. Louis advanced the argument last month, in opposing a motion from Cerro to sever the pollution claims of his clients into individual suits.

He wrote that Cerro proposed severance “for one simple yet unstated reason - to burden the plaintiffs with hundreds of thousands of dollars in extra filing fees and other costs.”

“It would also require the plaintiffs to repeatedly proffer the same facts into evidence and prove the same scientific conclusions and opinions,” he wrote.

“The amount of additional time and effort involved with having to repeat everything over 10,000 times would slow down the plaintiffs’ ability to pursue justice and delay their day in court.”

Schoen, partner Troy Walton, and Belleville lawyers Christopher Cueto and Lloyd Cueto filed 113 suits against Cerro this year, with most of the suits listing 99 plaintiffs.

They also asserted claims against Marmon Engineered Industrial and Metal Components, Inc., and the Marmon Group LLC.

Some suits allege physical injury, some allege property damage, and some allege both.

The suits multiplied litigation that had stalled for years.

In 2009 and 2010, lawyers for more than 1,000 plaintiffs filed 21 suits against Cerro.

Cerro moved to sever the cases, and Circuit Judge John Baricevic wrote that he expected the motions would be granted at some stage of the proceedings.

He stayed all proceedings in 2010, in favor of mediation.

Mediation failed this year, and Schoen’s team began filing mass suits.

Cerro asked Baricevic to lift the stay so it could file a motion to sever the new plaintiffs.

Baricevic, now chief judge, lifted the stay and divided the cases between circuit judges Andrew Gleeson and Vincent Lopinot.

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 was 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.

Schoen’s team saw more similarities than differences.

“The plaintiffs’ claims all involve common questions of law and fact, and they arise out of the same transaction or series of transactions,” Schoen wrote on Oct. 16.

“The legal theories of recovery are the same for all plaintiffs, and so are the facts the plaintiffs allege and the defendants’ conduct,” he wrote.

“The defendants spent years emitting hazardous substances in the East St. Louis community, and all the facts surrounding the defendants’ emissions are the same for all plaintiffs.

“All the emissions came from the same source points for everyone in the current litigation and the emissions spread throughout the entire community in the same manner.”

Schoen wrote that joinder “permits these complex mass tort cases to proceed in an economical and practical manner that is beneficial to everyone involved.”

“The plaintiffs grouped the cases for filing, but there was never an intent to try all plaintiffs at the same time in one case or all cases,” he wrote.

“The plaintiffs will propose trying the cases in groups of five plaintiffs at a time, which will not create an undue burden on the judges, their staff, or the clerk’s office.”

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