A federal judge in New Orleans has dismissed a lawsuit seeking class-action status against the Denka Performance Elastomer plant near LaPlace — making it the first lawsuit against the plant to be thrown out since residents started suing over "excessive" chloroprene levels two years ago.
The case, filed by Juanea Butler on June 5, named Denka, E.I. DuPont de Nemours and Co., and the Louisiana departments of Environmental Quality and Health as defendants, alleging they owed damages to Butler and others in St. John the Baptist Parish for a litany of health problems ranging from respiratory issues to insomnia.
The lawsuit also sought an injunction ordering Denka to reduce the plant's emissions of chloroprene — a chemical the U.S. Environmental Protection Agency calls a “likely carcinogen” — below the federal agency's suggested limit of 0.2 micrograms per cubic meter of air.
Controversy has swirled around the Denka plant in recent years over the hazards posed by chloroprene, a chemical used to make the synthetic rubber neoprene. It has been produced at the LaPlace plant for about 50 years.
Since 2017, more than a year after an EPA report came out showing emissions from the plant gave St. John Parish the highest potential risk of cancer from airborne pollutants of any place in the country, more than 4,000 people have sued the company in 10 separate lawsuits winding their way through state and federal courts.
Butler's lawyer said she sought medical attention since 2012 for acute bronchitis, coughing, sinusitis, nasal polyps, wheezing, cardiac problems, nausea, vomiting, headaches, fatigue, anxiety, insomnia and hair loss.
But in a 27-page ruling, U.S. District Judge Martin Feldman completely dismissed her lawsuit, at one point saying that it “is so inartfully drafted that it is difficult to discern precisely which causes of action she may be advancing.”
Feldman also said she simply waited too long to claim any damages.
Under federal law, Butler had one year to file a suit for damages because of health problems she said the defendants caused. But she started seeking medical attention in 2012 and waited years after the EPA warned against chloroprene to file her suit in 2018.
Danny Russell, Butler’s attorney, said he was surprised with the ruling and Feldman's "harsh language." The lawyer vowed to keep fighting the company, saying he has filed an amended suit in federal court on behalf of Butler and six other plaintiffs.
That suit went before Magistrate Judge Karen Wells Roby on Feb. 20. She’s yet to rule on whether it can go forward; if it does, it would also be heard by Feldman. That suit also seeks class-action status.
Most of the suits filed against Denka claim the plant has emitted so much chloroprene that it has resulted in air concentrations exceeding acceptable risk for human exposure, and that the company failed to warn residents about that risk.
Butler's suit, however, was not one of seven identical suits filed in state court by a team of lawyers that alleged the plant caused residents fear of cancer. In those cases, the plaintiffs agreed not to seek more than $50,000 in damages, a tactic aimed at keeping the cases in the hands of local judges and out of federal court.
Feldman’s dismissal of Butler's suit leaves one more Denka lawsuit in his courtroom. It was filed in July 2017 by 13 St. John the Baptist Parish residents, including Robert Taylor, the leader of an activist group called Concerned Citizens of St. John.
The Taylor lawsuit also seeks injunctive relief by asking Feldman to shut down the plant or force officials to reduce its emissions.
Like the Butler suit, the plaintiffs in the Taylor suit sought class-action status, but that request was denied after the suit was filed because Feldman said they had missed a key deadline.
And last summer, Feldman seemed poised to toss the Taylor suit altogether, saying that while the residents claimed that the plant had forced them to stay indoors and caused them physical discomfort, their lawsuit was “wholly defective” because it lacked “any factual content.”
Instead, he asked them to resubmit it, with amended complaints.
The new version of the suit contained a long list of health issues allegedly suffered by each plaintiff.