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Cerro Flow wants to weed out claims in advance of St. Clair Co. bellwether trials

By Record News | Feb 16, 2016


Copper recycler Cerro Flow Products, facing 12,000 pollution claims, proposes a random survey to find out how many lack substance.

On Jan. 15, Cerro moved for permission to ask 375 random plaintiffs when they lived in the area and what levels of dioxin are present in their blood.

Cerro counsel Thomas Ysursa wrote that, “answers would allow Cerro to file dispositive motions for any claims where it is clear that a plaintiff cannot meet his or her burden on either the issue of duty or causation.”

“Ultimately, the outcomes of those 375 cases would allow the parties to predict the outcomes of the remaining 12,000 claims within a margin of error of plus or minus five percent,” Ysursa wrote.

St. Clair County Circuit Judge Andrew Gleeson plans to hold bellwether trials, which judges can conduct for individuals in order to shape mass settlements.

According to Ysursa, “The term bellwether is derived from the ancient practice of belling a wether, a male sheep, selected to lead his flock.”

“The ultimate success of the wether selected to wear the bell was determined by whether the flock had confidence that the wether would not lead them astray,” he wrote.

“To be of any value to the parties and the court, the bellwether trial process must yield results that can be extrapolated to the larger body of plaintiffs and their claims.”

Ysursa wrote that bellwether trials produce representative outcomes that inform the parties of strengths and weaknesses in their claims and defenses.

He asked Gleeson to reject a proposal from plaintiff’s counsel, who would proceed to trial for 15 plaintiffs and stay discovery for all others.

“Such trials might benefit those 15 individuals, but they would do nothing to help the remaining 11,985 plaintiffs get their day in court,” he wrote.

“The court would still face 11,985 claims languishing on its docket, without making any progress toward resolving the litigation in its entirety.”

He wrote that the Texas Supreme Court granted a writ of mandamus against a judge who stayed discovery on all but 20 individuals among 454.

Plaintiff lawyers Lloyd Cueto and Paul Schoen opposed Ysursa’s motion on Jan. 26, writing that it cited no Illinois authority, state or federal.

“It is no surprise that Cerro relies on the Texas Supreme Court as its authority since it is that court that is known nationwide for striking down health and safety laws by striking down the rights of injured citizens,” they wrote.

“Hopefully this court will recognize the citation to Texas Supreme Court decisions for exactly what it is, a further attempt to promote profits over people.”

They wrote that Cerro ignored Illinois statute granting trial preference to persons who have reached age 70, and to others where a judge finds good cause.

Troy Walton of Edwardsville also represents plaintiffs, along with Gregory Cade, Larry Wright and Mark Rowe, all of Birmingham, Ala.

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