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Bernard v. Grefer

United States District Court, E.D. Louisiana

June 2, 2015

CATHERINE M. BERNARD, ET AL.
v.
JOSEPH GREFER, ET AL.

SECTION "L" (2)

ORDER & REASONS

I. BACKGROUND

This case arises out of alleged personal injuries and property damages that resulted from alleged exposure to naturally occurring radioactive material (“NORM”), also known as technologically enhanced radioactive materials (“TERM”), as part of oil operations by various pipe-cleaning defendants. In addition to the pipe-cleaning defendants, Plaintiffs name the landowners who owned the land upon which the pipe-cleaning operations were conducted and oil companies as defendants. The Petition asserts claims by approximately 465 Plaintiffs who originally filed their claims in the Civil District of Orleans Parish on March 5, 2014. Defendant Transco Exploration Co. removed this case to federal court pursuant to the Class Action Fairness Act. (Rec. Doc. 1).

The Petitioners are all present or former residents of Jefferson Parish and have all, at some point, worked or lived in the area near “Grefer Tract, ”[1] the land at issue. (Rec. Doc. 1-1 at 9). From 1953 until 1992, the property was leased to clean, maintain, and repair used oil field pipes and equipment. (Rec. Doc. 1-1 at 9). Plaintiffs allege that the “oil field equipment and pipes were and continue to be contaminated with highly toxic materials, hazardous, carcinogenic, and poisonous” and that this contaminated the Grefer Tract. (Rec. Doc. 1-1 at 10). Plaintiffs contend that the property contamination also contaminated the air, land, ground water, top soil, subsoils, food, neighborhoods, and that “petitioners have become infested with these highly toxic hazardous chemicals, toxicants, and pollutants.” (Rec. Doc. 1-1 at 10). Plaintiffs allege that at all times, Defendants knew or should have known that the oil pipes were contaminated. (Rec. Doc. 1-1 at 11). Plaintiffs allege that the contamination was caused by the “negligence, wanton conduct, breach of duty, deceit, and intentional misrepresentation of the defendants.” (Rec. Doc. 1-1 at 12).

The Plaintiffs brought claims against twenty-eight Defendants but have settled with most Defendants, leaving only two Defendants in the case: ExxonMobil and Intracoastal Tubular, Inc. (“Intracoastal”). Plaintiffs filed a Second Supplemental Amended Complaint on December 23, 2015 and allege, in addition to their personal injury claims, that ExxonMobil and Intracoastal Tubular Co. entered into a settlement agreement in Dottie Adams et al. v. Joseph Grefer et al. (“Dottie Adams”)[2] and that Defendants breached that settlement agreement. (Rec. Doc. 76 at 1).

As background to the settlement agreement, on October 11, 2005, Dottie Adams was filed on behalf of roughly 1, 205 claimants who asserted personal injuries allegedly caused by exposure to NORM, TERM, and other toxic and or hazardous materials as a result of the Defendants’ operations in the Grefer Tract. On November 27, 2007, the 24th JDC granted Plaintiff’s Motion for Leave and First Supplemental and Amended Petition, bringing the total number of plaintiffs in the Dottie Adams lawsuit to approximately 4, 322. (Rec. Doc. 92-3).

A. ExxonMobil’s Dottie Adams Settlement and Subsequent Events

Although the Court summarized these events in its Order & Reasons (Rec. Doc.117), it is appropriate to recall those events here. In 2008, ExxonMobil and the Dottie Adams plaintiffs reached a settlement. Counsel for ExxonMobil summarized this Agreement in a letter (“Letter Agreement”)[3], dated February 14, 2008, to lead Plaintiffs’ counsel, Grover G. Hankins. Under the Agreement, Plaintiffs’ recovery would be based on a point system. The letter stated:

The application of the points system below will apply to pay individual settlement amounts to all Dottie Adams plaintiffs listed in the original and amended petitions filed in the 24th Judicial District Court for the Parish of Jefferson, Louisiana, that meet the criteria to receive a settlement as stated above.
As a basis to reach this agreement in principle, counsel for plaintiffs in the Dottie Adams case have stated to ExxonMobil that they have been retained as the sole legal counsel to represent the interests of the Dottie Adams plaintiffs listed in the original and all amended petitions and that they have the authority to bind each of the Dottie Adams plaintiffs listed in the original and all amended petitions to settle their individual claims based on the point system set forth below. ExxonMobil agrees to pay additional claimants that become plaintiffs in the Dottie Adams case in the future using this point system, provided said claimants meet the settlement criteria set forth above.

(Rec. Doc. 78-2 at 2).

Pursuant to the Letter Agreement, and Plaintiffs do not dispute this point, ExxonMobil paid approximately $8, 200, 000 to 2, 004 claimants. (Rec. Doc. 96 at 6). Of those 2, 004 individuals who received settlement payments under the terms of the Letter Agreement, approximately 1, 691 were Dottie Adams Plaintiffs on February 14, 2008, the day the Letter Agreement was executed, and 313 individuals were “new” claimants. These 313 individuals constituted claimants who were not named plaintiffs in the Dottie Adams lawsuit, but ExxonMobil entered a settlement agreement with them pursuant to the Letter Agreement’s settlement terms and calculated those settlement amounts based on the Letter Agreement’s point system.

ExxonMobil claims that in or around June 2008, Plaintiffs’ counsel provided ExxonMobil with a list of an additional 1, 000 claimants, most of whom were not named in the Dottie Adams suit. This list eventually swelled to over 1, 700 claimants, and Plaintiffs’ counsel claimed that those claimants were entitled to the terms of the Letter Agreement despite the fact that they were not named plaintiffs in the Dottie Adams suit. According to ExxonMobil, Plaintiffs’ counsel demanded that ExxonMobil pay an additional $4.2 million in settlement money for these “new” claimants. Plaintiffs do not exactly dispute this contention, as their memorandum states: “Exxon, despite repeated requests, subsequently refused to pay the remainder of the “new” claimants.” (Rec. Doc. 85-1 at 2). ExxonMobil refused to settle with these “new” claimants.[4]

Plaintiffs’ counsel consequently filed a number of motions for leave to amend the Dottie Adams petition, seeking to formally add these “new” claimants as Dottie Adams plaintiffs. ExxonMobil and other Defendants opposed these motions for leave. On May 23, 2011, the 24thJDC denied the Motion for Leave to File a 2nd Supplemental and Amending Petition. (Rec. Doc. 92-9). On April 1, 2013, Plaintiffs’ counsel filed a Motion for Leave to file a 3d Supplemental and Amended Petition. (Rec. Doc. 92-10). On June 25, 2013, Plaintiff’s counsel filed a Motion for Leave to file a 4th Supplemental and Amending Petition and sought to add an additional 1, 750 claimants as Dottie Adams Plaintiffs. (Rec. Doc. 92-11). On September 30, 2013, Plaintiffs’ counsel filed a Motion for Leave to file a 4th Supplemental Petition. (Rec. Doc. 92-12). On October 9, 2013, Plaintiffs’ counsel filed a Motion for Leave to file a 3rd Supplemental and Amending Petition (Rec. Doc. 92-13), a Motion for Leave to File a Supplemental and Amending Petition to Fourth Supplemental Petition (Rec. Doc. 92-14), and a Motion for Leave to File a Fifth Supplemental Petition (Rec. Doc. 92-15). On October 18, 2013, two of ExxonMobil and Intracoastal’s co-defendants filed oppositions to Plaintiffs’ ...


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