Goldberg Kohn Principal David Chizewer is quoted in the article, "DuPont, Others Must Face Claims in Indiana Superfund Row," published in the July 26, 2021, edition of Law360.
The article concerns a ruling by a federal judge on July 26, 2021, in the litigation against three manufacturers - DuPont, Atlantic Richfield and U.S. Smelter - that significantly polluted an East Chicago, Indiana, neighborhood for years. The area was named a Superfund site by the U.S. Environmental Protection Agency in 2009. Goldberg Kohn is representing property owners in the area who are seeking compensation for the health risks they face and the lost property value of their homes, as well as other damages due to the negligence of the defendants, which all had operations in East Chicago at various times.
In his ruling, Judge Joseph S. Van Bokkelen eliminated some claims from the lawsuit but allowed the bulk of the claims to go forward. He dismissed trespass claims against all defendants and nuisance claims against Atlantic Richfield and U.S. Smelter; however, claims for negligence and negligent infliction of emotional distress can proceed against all defendants. In addition, DuPont must face the nuisance claims.
"We are pleased that we can now move forward with proving our case and obtaining justice for this group of embattled East Chicago homeowners," says Mr. Chizewer in the article.
The plaintiffs in the case are primarily low income, minority residents who own homes within the East Chicago Superfund site, which is one of the most contaminated areas in the United States. According to the complaint, "the residents have been subjected to decades of environmental injustice, neglect, and harm caused by the lead smelting, lead refining, and other manufacturing that the defendants operated."
Goldberg Kohn first filed the suit in 2017 on behalf of 38 families living in East Chicago. When the case was initiated, Mr. Chizewer said, "We have filed this case on a pro bono basis to obtain justice for people who have actually come to us and asked for their help." In the years since, the lawsuit has endured many challenges like these most recent ones.
The Goldberg Kohn complaint states that each company ran operations in East Chicago and emissions from the companies' operations from the 1970s through today have contaminated the surrounding area — including seeping into groundwater — and impacted the health and property values of residents of the area. Atlantic Richfield had operations in the area until the 1970s, U.S. Smelter had operations going until the 1980s and DuPont's operations continued until about 2000, though it still owns the property.
Judge Van Bokkelen found that the plaintiffs sufficiently alleged that the companies had a duty to not contaminate surrounding properties and kept that contamination secret. The plaintiffs further sufficiently alleged that the companies breached a duty to avoid offsite impacts of their operations, the judge wrote. He also allowed the request for punitive damages to go ahead, rejecting DuPont's argument that the complaint doesn't allege that it acted with fraud, malice, gross negligence or oppression. He said the complaint alleges that they acted in a "willful and wanton manner" and in "reckless indifference" to the plaintiffs' safety, which is enough to sustain punitive damages under state law.