Source: Times Record (Fort Smith, AR), April 18, 2015
Posted on: http://envfpn.advisen.com
A proposed class-action lawsuit against Whirlpool was dismissed this week after a settlement was reached with plaintiffs whose property was devalued by groundwater contamination.
U.S. District Court Judge P.K. Holmes III on Wednesday granted a motion to dismiss filed by Rogers attorney Kenneth Shemin, who represents the plaintiffs.
“After extensive arms-length negotiations, the putative class representatives as well as a substantial number of other putative class members have reached (individual) settlement agreements with Whirlpool Corp.,” Shemin wrote in his motion to dismiss.
According to Whirlpool, which closed its Fort Smith plant in June 2012, a plume of trichloroethylene, or TCE, a known carcinogen, leaked into groundwater at the plant site, then later into a neighborhood to the north. Whirlpool used TCE as a degreasing solvent at the plant between the late 1960s and early 1980s, according to the company.
The lawsuit was filed in Sebastian County Circuit Court in May 2013 and transferred to federal court the following month.
The complaint sought unspecified damages for nuisance, trespass, violations of the Arkansas Deceptive Trade Practices Act, accused Whirlpool of fraudulent concealment and sought punitive damages.
Terms of the settlement weren’t made part of the court record, however, Whirlpool issued a news release commenting on the terms.
“The settlements concluded during the past two months include paying affected owners the amount by which each property was devalued by the tax assessor, plus 33 percent of that amount. In exchange for the payments, property owners agreed to release all claims and dismiss pending litigation, to file deed restrictions prohibiting drilling of wells on the properties, and to allow access for testing and remediation activities being undertaken by Whirlpool and its consultants,” according to the release.
Two additional lawsuits were filed May 23, 2013, in Sebastian County Circuit Court by Taylor Law Partners LLP of Fayetteville and McMath Woods P.A. of Little Rock — one on behalf of 10 homeowners, and the other on behalf of landlords who own 36 properties in an area affected by the Whirlpool leak.
Those lawsuits also were transferred to federal court, consolidated into a single lawsuit Feb. 19, 2014, and seek damages similar to those sought in the class-action complaint.
Plaintiffs in the consolidated complaint objected to a proposed settlement reached in July between Whirlpool and Shemin’s clients, however, all but four of the plaintiffs in the consolidated suit have now reached settlements with Whirlpool, according to the release.
In December, Holmes denied a joint motion by Shemin and Whirpool to certify Shemin’s complaint as a class-action lawsuit and approve the proposed July settlement.
A trial on the consolidated complaint is scheduled to begin Dec. 7.
“The claims that are continuing in litigation are outliers with demands that are simply unreasonable. We have been more than generous in determining the compensation we will pay to owners, but any settlement must be fair to everyone involved,” Whirlpool Vice President for Communications Jeff Noel said in the release. “We are hopeful the remaining plaintiffs will accept these terms in the near future and we can all move forward in a positive way.”
In December 2013, the Arkansas Department of Environmental Quality approved a plan Whirlpool submitted in July to clean up the site and contaminated groundwater.
The plan cites several remedies, such as covering impacted soil on Whirlpool’s property with asphalt and what ADEQ calls “an impermeable coating.” The proposal also calls for institutional controls and treatment of groundwater with a chemical oxidant, as recommended by Whirlpool’s environmental consultant, Environ.