story by Ryan Saylor
rsaylor@thecitywire.com
What started off as an attempt by Whirlpool to ban the drilling of groundwater wells in the neighborhood north of its former manufacturing facility due to it admitted trichloroethylene (TCE) contamination has led to two lawsuits being filed against the Benton Harbor, Mich., corporation in Sebastian County Circuit Court this morning (May 23).
The two lawsuits were filed on behalf of residents and landlords, according to associate attorney Ross Noland of the Little Rock-based law firm McMath Woods P.A.
Even though concerns have been expressed over the health affects of TCE, which Whirlpool has admitted could be cancer-causing if ingested, Noland said the lawsuits focus on property damages.
"There are some other elements of damage, but the primary is property damage and the reduction of value in the property," he said.
While a recent lawsuit against Whirlpool related to a cancer cluster in Clyde, Ohio, falls under a class action suit, today's legal filings do not.
"That's a possibility (at a later time), but we're not seeking that," Noland told The City Wire.
Noland said his clients sought out McMath Woods shortly after Whirlpool came before the Fort Smith Board of Directors seeking the groundwater well ban.
The lawsuits filed today do not seek specific monetary damages, but do layout some of what residents are seeking.
"Plaintiffs seek damages for the reasonable expense of necessary repairs and restoration of the property which was damaged, plus the difference in the value of the property before contamination and the value after restoration," read the lawsuit filed by residents.
"Plaintiffs are also entitled to damages for the loss of use and enjoyment of their properties, discomfort, annoyance, disruption, inconvenience, loss of peace of mind, fear and fright resulting from the TCE plume and contamination," the filing continued. "Punitive damages are proper because the defendant knew or ought to have known, in light of the circumstances, that TCE could naturally and probably result in a groundwater plume and damage to plaintiff's properties. Defendant managed its tCE with reckless disregard of the consequences, and in a manner from which malice may be inferred."
The lawsuits come just two days after Whirlpool submitted a revised risk management plan to the Arkansas Department of Environmental Quality, detailing its proposed plan for reducing the TCE plume. In the plan submitted Tuesday (May 21) to ADEQ, the company continues to claim no threat from TCE in the area.
"There continues to be, no human health risk from the TCE release. …A Human health Risk Assessment was completed in 2008 and again in 2012 documenting that off-site risk to residents is not present as long as the groundwater is not sued for drinking water."
Noland said his firm will consult with experts to determine if the claims put forth by Whirlpool as recently as Tuesday are accurate.
"Yes, we have consulted someone – I want to be careful – I don't want to downplay people's health concerns, but we are approaching this as a property damage case," he said. "For the time being, that's what we're looking at, but that's why are are going to do discovery."
According to Lawyers.com, discovery involves "the methods used by parties to a civil or criminal action to obtain information held by the other party that is relevant to the action."
Noland said while each case is different, he expects these cases to be in the legal system from six months to two years.
"You can never predict what will be filed or what evidence will be filed," he said.
Plaintiffs in the lawsuit filed by residents include Barbara Wilkinson, Harry Smith II and Raymond Flowers. Plaintiffs in the lawsuit filed by landlords include Kralicek and Flusche LLC, Reith Properties LLC, Sam Reith, Neal Morrison, Suzanne Morrison Holloway and James Westpfahl.
A call to Whirlpool's corporate offices were not returned.