Madison - St. Clair Record

Saturday, February 22, 2020

Settlement in suit against U.S. over recycling worker’s mortar shell death awaits DOJ approval

By The Madison County Record | May 24, 2017

Law money 13

BENTON - Top Justice Department officials haven’t approved a settlement that lawyer Tom Keefe and U.S. attorney Donald Boyce drafted last year in a wrongful death suit against the government. 

Keefe moved to enforce the settlement in U.S. district court on May 16, but Boyce assistant David Pfeffer countered with a motion for more time. 

Yandle granted Pfeffer’s motion at a hearing on May 22, setting a June 30 deadline. 

She took Keefe’s motion under advisement until then, and asked for a status report on June 16. 

Keefe represents the estate of Rodolfo Romo, who died in an explosion at Totall Metal Recycling in Granite City in 2014. 

He sued Totall Metal Recycling and the United States in 2015, on behalf of estate administrator Adriana Ornelas. 

The complaint alleges that the United States caused mortar shells to be transmitted from Fort Irwin in California to Totall Metal Recycling. 

Keefe wrote that one or more mortar shells had not been rendered inert. 

He wrote that the United States knew or should have known that shells not rendered inert posed an unreasonable risk in recycling centers. 

The court clerk assigned the case to District Judge Nancy Rosenstengel. 

She recused herself, and the action passed to Yandle. 

Totall Metal Recycling moved to dismiss the complaint, arguing that Ornelas could seek relief through workers’ compensation. 

Keefe conceded the point and Yandle granted the motion, but by then the United States had filed a cross claim against Totall Metal Recycling. 

Last year, Totall Metal Recycling filed a counter claim against the United States. 

Yandle set trial to start this Jan. 9, and she received trial briefs on Dec. 27. 

Keefe proposed to apply California law on negligence. 

He wrote that the wrongful act occurred where the United States failed to identify a live explosive before shipping it. 

California damage law would not apply, he wrote, because the injury occurred in Illinois and damages would be awarded to Romo’s next of kin, all in Illinois. 

He wrote that Ornelas would claim damages for grief and anguish. 

Keefe himself helped write and advance the Illinois bill that allows juries at wrongful death trials to award damages for pain and suffering. 

Pfeffer wrote in his trial brief that, “In the absence of a true conflict regarding the standard of care owed in a safety inspection, the governing choice of law standard thus defaults to the forum state, Illinois.” 

He wrote that with respect to damages, California law should apply. He also wrote that Illinois and California differ on damages for grief and sorrow. 

“Eyewitness Donald Wanamaker is expected to testify that Mr. Romo picked up one of the items in the crate and struck the contents several times, producing metallic ‘ting’ noises followed by the explosion,” Pfeffer wrote. 

He wrote that Totall Metal Recycling had reasonable notice that munitions scrap in its possession might contain dangerous items, and failed to take reasonable precautions such as informing and training employees. 

Totall Metal Recycling didn’t file a trial brief. 

On Dec. 30, the parties notified Yandle that they settled all claims in principal. 

She entered an order allowing 90 days for consummation, and she wrote that the settlement was subject to final approval by the Department of Justice. 

In March, at the deadline, the parties asked for more time. 

She granted it and told them to report to her before May 18. 

Keefe moved to enforce the settlement on May 16, writing that all delays resulted from failures by the United States and Totall Metal Recycling to sign releases. 

“Plaintiffs have signed everything they have been asked to sign as soon as presented to them,” he wrote. 

He wrote that the stated reason for more time was that Totall Metal Recycling continued to be recalcitrant and obstreperous. 

“The family of Rodolfo Romo has been without a husband and bread winner since the date of this accident, and plaintiff respectfully submits that a case settled more than five months ago should have been paid long before today’s date,” he wrote. 

Pfeffer moved for more time on May 17. 

On May 19, on behalf of Totall Metal Recycling, Michael Nester of Belleville supported Keefe’s motion. 

Nester wrote that he “engaged in extensive and perhaps exhaustive negotiations with the Department of Justice.” 

He wrote that the department made demands on terms and conditions that were inappropriate, overreaching, unilateral, and burdensome. 

On May 18, Nester wrote, the United States made a proposal that might reduce Totall Metal Recycling’s concerns about indemnification. 

Nester disagreed with Keefe about his client being recalcitrant and obstreperous. 

“[I]ts efforts were necessary to protect its interests in regard to terms and conditions imposed by the Department of Justice which were unacceptable to Totall Metal Recycling and inconsistent with its perceived legal obligations under the negotiated settlement.” 

Also on May 19, Pfeffer opposed Keefe’s motion.  

“With respect to claims where the aggregate damages claimed by the plaintiff exceed $4 million, the Attorney General has delegated full settlement authority to the deputy attorney general and to the associate attorney general,” Pfeffer wrote. 

He wrote that they were the only individuals who could bind the United States to an enforceable agreement. 

“To date, the United States attorney’s office has not received all of the materials necessary to make the final request for authorization, and the Attorney General’s designee has therefore not yet authorized the settlement,” he wrote. 

“Accordingly, there is no final settlement for the court to enforce and plaintiff’s motion must be denied.” 

Pfeffer disagreed that his proposals were inappropriate and burdensome. 

He wrote that the language in question asked Totall Metal Recycling to be responsible for future claims seeking to recover payments made by Totall Metal Recycling as a result of Romo’s death. 

“The United States seeks to avoid a future obligation to repay TMR’s settlement outlays in some future subrogation or lienholder suit, such as from TMR’s insurers,” Pfeffer wrote.

“Good progress has been made to address the parties’ mutual concerns, but TMR has not yet agreed.” 

On May 22, when Yandle extended the deadline to June 30, she wrote that she would not grant another extension absent exceptional circumstances.

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Organizations in this Story

Donovan, Rose, Nester, & Joley, P.C.Keefe & Keefe, P.C.U.S. District Court for the Southern District of Illinois