Blanks v. Fluor Corp., ED 97810.

Citation450 S.W.3d 308
Decision Date16 September 2014
Docket NumberNo. ED 97810.,ED 97810.
PartiesPatrick BLANKS, et al., Respondents, v. FLUOR CORPORATION, et al., Appellants.
CourtCourt of Appeal of Missouri (US)

450 S.W.3d 308

Patrick BLANKS, et al., Respondents
v.
FLUOR CORPORATION, et al., Appellants.

No. ED 97810.

Missouri Court of Appeals, Eastern District, Division Four.

Sept. 16, 2014.


450 S.W.3d 323

Amy Jo Thompson, Thomas C. Walsh, John H. Quinn III, Thomas B. Weaver, Jeffery T. McPherson, St. Louis, MO, for appellants.

Mark I. Bronson, Meghan K. McGlynn, St. Louis, MO, Steven M. Bronson, Gerson H. Smoger, Dallas, TX, James R. Dowd, Clayton, MO, for respondents.

LAWRENCE E. MOONEY, Presiding Judge.

“Our Tigger.” That is what Austin Manning's parents called him when he was a little boy, because he bounced around like Tigger from the classic tale, Winnie the Pooh. He never sat still for more than a second. At the time, the family thought it was cute. Little did they know of the problems to come.

As Austin grew older, he had numerous problems. When Austin started school, he had trouble with simple things like writing his name. He was always behind. He needed directions to be repeated over and over again. He could not grasp even the simplest of concepts. And he could not sit still long enough to do anything without constant supervision. From early on, Austin was easily distracted. He could not complete a task. He talked too much, he fidgeted, and he disrupted his classroom. He struggled in reading and math, and repeated second grade. Austin played Little League, but not well. Rather than attentively playing his position, he would often just sit down at his outfield position and play in the grass. At home, Austin was restless, disorganized, and had difficulty doing his chores. He was forgetful. He procrastinated. He was quick to anger and often argued with adults. The hyperactivity exhibited in his toddler years continued as he grew older. He had difficulty planning or engaging in leisure activities quietly. He interrupted or intruded on others. He had difficulty waiting for his turn. He was always on the go and acted as if driven by a motor. Unbeknownst to Austin's family, Austin had been exposed to high levels of lead and suffered from lead poisoning, all caused by lead emitted from the smelter in his town.

Austin is not alone. Other children from his town have suffered the same plight. The present action involves sixteen children who all suffered lead poisoning while living in Herculaneum during their early childhood. The children's parents, unsuspecting and unknowing at first, eventually learned that their children had been poisoned. They sued the partners of The Doe Run Company partnership, which owned and operated the Herculaneum lead smelter from 1986 to 1994. Framed by the children's lawyers as the age-old conflict of business profits versus human safety, the children alleged the partnership negligently allowed them to be exposed to lead. After a landmark trial lasting some

450 S.W.3d 324

thirteen weeks, the jury awarded the children millions of dollars, both in actual and punitive damages.

The partners have appealed, alleging a host of errors. Before addressing those legal questions, however, we return to Herculaneum, to recount the lives of the children and their unsuspecting parents, and the actions of an industry giant that allowed the children to be exposed to lead, forever affecting the children.1

The Children

The sixteen children who suffered lead poisoning in this case are: Preston Alexander, Patrick Blanks, Bryan Bolden, Tiffany Bolden, Nathan Davis, Gabe Farmer, Sydney Fisher, Heather Glaze, Jeremy Halbrook, Matthew Heilig, Austin Manning,

450 S.W.3d 325

Jesse Miller, Jonathan Miller, Ashley Shanks, Lauren Shanks, and Isaiah Yates. Some of the children were born in Herculaneum. Some are even second-, third-, and fourth-generation residents of the town. Others moved there as infants or young children. When asked to describe Herculaneum as that town existed prior to 1994, the parents of these children painted a portrait of small-town America. They described “Herky” as a friendly, close-knit community, where everyone knew everyone else, and doors went unlocked. Children spent their days playing outside. They rode their bikes in the streets around the smelter. They fished near the dam behind the smelter, and even played on the smelter's slag pile. Families frequently took walks past the smelter. They gardened and worked in their yards. They barbequed and threw birthday parties for their children in their backyards.

In their early years, the children explored their world. For instance, Austin Manning loved to play in the dirt with his Tonka trucks and Hot Wheels. He built racetracks in the dirt. Before he was old enough to play with his trucks, he would play on blankets in the yard. Jeremy Halbrook also liked to play in the dirt with his dump truck. Preston Alexander played outside in his sandbox, played ball in his yard, and enjoyed Easter egg hunts. Jesse Miller crawled around and sat in the yard with his mother, picking grass. Isaiah Yates, when just in diapers, crawled around in his yard, picking up sticks. Patrick Blanks played with his shovels and buckets for hours in the dirt in his backyard. Each fall, Gabe Farmer played in the leaves in his yard. Sydney Fisher, from the time she was an infant, spent a lot of time in her yard. She played on the ground, played with her dog, and when she was older, she played on her swing set. She could see the smelter's smokestack from her yard.

The children here all lived very close to the lead smelter. Some lived directly across the street; all lived within several blocks of the smelter. The parents universally noted that smoke emanated from the smelter and settled like smog over the town several times a week. The smog had a strong sulfur odor; it burnt people's eyes and had a “horrible” taste. As one parent related, “You could taste it, you could feel it, you could see it.” The families also noted the enormous amount of dust that collected in their homes. Those who moved to the area noted that Herculaneum was dustier than other places where they had lived, and that their homes were harder to keep clean. Moreover, the dust was not like “normal” dust or dirt, but instead was dark gray or black in appearance and felt gritty. The families dusted and vacuumed each and every day. Even with that, they could not remove all the dust from their homes.

Despite all this, the parents gave the smog, the dust, and the smelter little or no thought. They knew the smelter existed—you could not miss it. Isaiah Yates's parents, in particular, hauntingly recalled having no concerns about the smelter. They moved to Herculaneum in January of 1990, two years prior to Isaiah's birth. They were looking for a starter home and a good place to raise their children. They were pleased to find the house in Herculaneum, in a neighborhood full of kids, with the school nearby, just a block down the street. They were aware of the smelter but were not worried, especially since the school was located so close to the smelter. They presumed that if there was a problem with the smelter, something would be said, and nothing ever was. Indeed, Mrs. Shanks's depiction, stated in rather blunt, matter-of-fact terms, aptly summarizes the parents' feelings: “There was a smelter. It was there. It was safe.”

450 S.W.3d 326

Unbeknownst to the parents, the air they breathed, the streets and dirt alleys they walked on, and the homes and yards they lived in were all contaminated with lead. The parents testified that prior to 1994, during the partnership period, no one from the smelter ever warned them of the danger their children faced. No one ever told them that lead from the smelter was poisoning their children.

“Just can't seem to get it together.” This is how Patrick Blanks describes himself. Born in July of 1990, Patrick was very flighty as a young child—he just could not stay still. Once in school, he disobeyed, he talked back, and he disrupted his classroom. He would not sit down and listen. Patrick was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and placed on Ritalin, which helped a bit. Nevertheless, even though Patrick was a bit more calm and obedient, his troubles persisted. He could not focus on the task at hand. And he was impulsive and aggressive. He started kicking his classmates' chairs. And when about ten years old, he hit one of his classmates, breaking the classmate's jaw. Patrick ended up in juvenile detention. He got into another fight several years later, and ended up in juvenile detention again. At this point, Patrick dropped out of school. As a young adult, Patrick still has attention problems and does not follow through. He would like to return to school to train as an electrician. Patrick's grandmother, though encouraging, has her reservations. She does not think Patrick can work as an electrician because he cannot focus and is forgetful.

“Always different.” This is Melissa Alexander's description of her son Preston. Melissa was pregnant with Preston while living in Herculaneum. She gave birth to Preston in 1989. Preston's problems began when he was three or four years old. He started crying at night, complaining about his legs cramping. This went on continuously, and got so bad that Preston's father had to wrap warm towels around Preston's legs to comfort him. Preston also complained about severe stomach-aches. As a young child, Preston was always very hyperactive. He was temperamental and would throw fits. He was a very angry child and always wanted to fight. He talked back, did not listen to his parents, and constantly got into trouble. In school, Preston had an unpredictable personality and was known as the school bully. He had a short temper with his coaches in high school. Preston was always behind in his schoolwork. He spent hours each night, just trying to finish his homework. He could not stay focused. He still has difficulties today as an adult. A year prior to trial, Preston was employed by a company that delivered equipment to construction jobs. Preston had...

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