MOUNT VERNON – Copper recycler Cerro Flow Products, defending claims that it polluted 15,000 properties around Sauget, has petitioned the Fifth District appellate court to review a settlement among all other defendants.
Cerro challenges an order of St. Clair County Circuit Judge Andrew Gleeson, who dismissed Monsanto, Pfizer, Solutia, Pharmacia and Eastman Chemical.
The company opposes the settlement because it discharges any potential liability of the settling defendants to other parties.
Gleeson sealed the settlement and the transcript of a hearing he held on March 29.
The litigation started in 2009, but Chief Judge John Baricevic stayed it until 2014.
After he lifted the stay, a second wave of suits followed.
Paul Schoen of Belleville and Troy Walton of Edwardsville represent plaintiffs, along with Gregory Cade and Larry Wright of Birmingham, Ala.
Gleeson has begun planning bellwether trials, which judges in mass litigation conduct to indicate global settlement values.
On March 4, Schoen submitted a settlement for all defendants but Cerro, along with a motion for a finding of good faith and an order dismissing the defendants.
“The settlement was entered into on Nov. 21, 2014,” Schoen wrote.
He wrote that 18 lead plaintiffs each received certain moneys and might in the future receive additional moneys.
Cerro counsel Thomas Ysursa of Belleville replied that Cerro did not oppose plaintiffs settling with what he called the Monsanto defendants.
“However, plaintiffs go one step further and seek to have this court declare that the settlement terminates Cerro’s rights to seek contribution for injuries that it did not cause,” Ysursa wrote.
He wrote that shifting a disproportionate and inequitable portion of liability onto the shoulders of another is inconsistent with the Contributions Act.
“The agreement neither allocates proceeds to the different claimants and their respective claims, nor does it set forth the total amount of the settlement,” he wrote.
“The total amount is contingent on the results of testing that will determine whether the plaintiffs actually had an increased amount of chemical contaminants in their bodies.”
Ysursa further wrote that plaintiffs would test 600 claimants to ascertain a statistically valid representation of the degree of contamination.
He wrote that deficiencies in the settlement precluded Cerro and the court from determining whether it was made in good faith.
Gleeson disagreed. He ruled that “any and all contribution claims asserted or that could have been or could be asserted against settling defendants are barred.”
Cerro’s appeal brief is due June 29.