Patrick Blanks v. Fluor Corporation

In the Missouri Court of Appeals

Eastern District

DIVISION FOUR

PATRICK BLANKS, et al., ) No. ED97810

)

Respondents, ) Appeal from the Circuit Court

) of the City of St. Louis

vs. )

) Honorable Dennis M. Schaumann

FLUOR CORPORATION, et al., )

)

Appellants. ) Filed: September 16, 2014

“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 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

1

We set forth the facts in the light most favorable to the jury’s verdict. Hayes v. Price, 313 S.W.3d 645,

648 (Mo. banc 2010). We pause here to address the children’s two motions that are pending before this

Court. The children first move to dismiss the defendants’ appeal for repeated violations of Rule 84.04, the

rule of appellate procedure that sets forth the requirements for an appellant’s brief. The children allege

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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, 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

numerous violations, ranging from an improper statement of facts to improper points relied on, to

inadequate citations to the record. The allegations contained in the children’s 74-page motion are largely

meritorious. The most egregious of defendants’ violations, and the one that most affected the disposition of

this appeal, is the defendants’ statement of facts. Rule 84.04(c) requires that an appellant’s fact statement

be a “fair and concise statement of the facts relevant to the questions presented for determination without

argument.” “The primary purpose of the statement of facts is to afford an immediate, accurate, complete

and unbiased understanding of the facts of the case.” Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513,

515 (Mo. App. E.D. 1998). Defendants’ statement violates the rule’s requirements and falls woefully short

of fulfilling its essential purpose. Defendants present a statement of facts entirely biased in their favor,

while ignoring and excluding the facts that support the verdict. An appellant must provide the facts in the

light most favorable to the verdict, not simply recount appellant’s version of the facts presented at trial. In

re Marriage of Weinshenker, 177 S.W.3d 859, 862 (Mo. App. E.D. 2005). Emphasizing facts favorable to

the appellant and omitting others essential to the respondent does not substantially comply with Rule 84.04.

Rothschild v. Roloff Trucking, 238 S.W.3d 700, 702 (Mo. App. E.D. 2007). Defendants also repeatedly

misstate the evidence. And their fact statement is inappropriately riddled with inflammatory language as

well as disparaging remarks about the trial judge, which we find entirely unjustified. Further, while the

parties may be intimately acquainted with the context of their litigation, the matter is new to this Court. It

is not this Court’s duty or place to comb through the record, ferreting out facts, to gain an understanding of

the case. Yet, this is exactly the position in which defendants placed this Court. The record on appeal

consists of transcripts totaling over 12,000 pages and a legal file that exceeds 6,600 pages. The parties also

filed over 1,400 exhibits with this Court. The defendants’ failure to provide an adequate statement of facts

resulted in the waste of judicial resources and added an inordinate amount of time to the disposition of this

appeal.

Compliance with the briefing requirements is required, not only so the appellant may give notice of the

precise matters at issue, but also so that unnecessary burdens are not imposed on the appellate court and to

ensure that appellate courts do not become advocates for the appellant. Thornton v. City of Kirkwood, 161

S.W.3d 916, 919 (Mo. App. E.D. 2005). Failure to comply with Rule 84.04 preserves nothing for review

and warrants dismissal of the appeal. Culley v. Royal Oaks Chrysler Jeep, Inc., 216 S.W.3d 235, 236 (Mo.

App. E.D. 2007). An inadequate statement of facts is grounds for dismissal. See Washington v. Blackburn,

286 S.W.3d 818, 820 (Mo.App. E.D. 2009). Given the gravity of this case, however, we have elected to

exercise our discretion to review the case, choosing instead to deal with the defendants’ violations as they

arise, in the body of our opinion. We therefore deny the children’s motion. The children also request that

this Court sanction defendant Fluor under Rule 84.19 for its conduct in knowingly presenting false and

materially misrepresented facts to this Court. We likewise deny that motion.

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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

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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.”

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.

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“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

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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 difficulties at his job, learning,

understanding, and being able to fulfill his job duties. A coworker described Preston as

being “slow” and “in a daze.” They always had to tell him what to do, and they had to

constantly watch him so that he did not fall over construction work or wander into traffic.

“Like a mummy.” This is how Jeremy Halbrook felt when taking medication to

treat his ADHD. Born in 1984, and a resident of Herculaneum as of 1986, Jeremy as a

child had trouble sitting still, following through with tasks, and completing assignments

on time. He was jittery and anxious. This all affected his ability to do his schoolwork.

Jeremy was a very poor student and struggled from the beginning. He had difficulty

understanding the material. He could not concentrate and often forgot what he had just

read. He needed much direction to complete a simple assignment. He was impulsive and

was easily distracted. He could not stay seated in class, he spoke impulsively, and he hit

his classmates. Jeremy had difficulty getting along with others. He was angry and could

be mean. He got into verbal fights and inappropriately teased his classmates. He had few

friends in high school.

Jeremy was diagnosed with ADHD when in the third grade. The doctor placed

him on Ritalin to treat his symptoms. While on the drug, Jeremy would not eat. He had

no emotions. A change in medication helped slightly – Jeremy would at least talk. Still,

he was still very quiet, withdrawn, and “just not who he really was.” He was still fidgety

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and did not complete his schoolwork on time. Jeremy began treatment with a

homeopathic doctor when in 6th grade, which slightly helped his hyperactivity – he could

at least sit still a little bit. However, despite this, Jeremy continued to struggle. Indeed,

he still struggles today. He has problems with attention and cannot focus and complete a

task without someone coaching him. His mind wanders. He toils with his finances and

gets help paying his bills. He likely could not pay them without help. He has low self-

esteem, little to no interest in life events, and does not like being around a lot of people.

These are just a few of the children’s stories. With no disrespect intended, we cite

just these illustrative examples instead of setting out the particulars of each child’s

troubled development. Taken together, the stories tell the same tale. When young, the

children were very active, very “busy,” and would never sit still. As they grew older, this

hyperactivity continued. Jesse Miller, for example, when eleven years old, was

extremely hyperactive – talking, walking, and practically running. “I’ve never seen one

quite like this,” exclaimed one expert. Jesse’s mother remarked that he took up seventy-

five percent of her time. Further problems with memory, concentration, and

comprehension emerged and became evident when the children started school. They had

difficulty staying on task and were easily distracted. Jonathan Miller’s mother, for

instance, said that she could ask Jonathan to take out the trash, and if he did not

immediately do so, he would still be sitting a minute or so later because he had forgotten

what she had asked. Similarly, Bryan Bolden would get halfway out with the trash, then

forget what he was doing and not finish the task. Nathan Davis, though physically able,

tried to play football in high school, but could not remember the plays. The children all

had difficulty keeping up with their schoolwork. They fidgeted and disrupted the class.

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They had difficulty grasping concepts and had to be told things several times over in

order to understand the material. As Gabe Farmer’s mother explained: “You would just

go over and over and over, and he was somewhere else. All he did was daydream.” The

children spent twice as long on their homework as their friends, just to be able to

complete their assignments. Many needed tutoring or special classes. Five of the sixteen

children repeated grades. All of this took a toll on the children. Isaiah Yates, for

instance, came home from school crying every day because he could not keep up with his

schoolwork and felt “stupid.”

A number of children also have behavioral and social problems. They are quick

to anger. Matthew Heilig, for instance, gets very angry and takes his anger out on

furniture and walls, to the point of putting holes in the walls. Ashley Shanks complains

of being irritable and angry. Several children have become defiant, others disrespectful.

Several were suspended from school. Several, like Jeremy Halbrook and Matthew

Heilig, have trouble getting along with others and avoid large groups. A number also

suffer from depression and low self-esteem.

The children’s problems persist in young adulthood. Problems with memory and

concentration continue. Several of the children have tried to attend college, only to fail.

Ashley Shanks, for example, has dropped out of three colleges. She cannot hold down a

job and has many unfinished projects at home, all because of her inability to concentrate.

Despite very much wanting a college education, Gabe Farmer simply could not complete

his studies. After three semesters, Gabe had a grade point average of 0.22, and dropped

out. In daily life, Gabe forgets to pay bills. His roommate helps out, and according to

Gabe’s mother, it would be a disaster for Gabe to live on his own. The children, like

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Preston, need constant supervision. For instance, Nathan Davis, who works at a company

that builds refrigerators, often drifts away, and coworkers have to tell him every day what

to do. Heather Glaze “zones out” at work and coworkers have to repeatedly tell her work

duties. She is inattentive and fails to complete assigned tasks. She is often disrespectful

and is sometimes difficult to get along with. Her coworkers tend to walk on egg-shells

around her. Self-esteem problems continue as well. Nathan Davis, for example, gets

upset over little things. He once broke down at work – crying, sweating, and pulling his

hair out, unable to speak – when a coworker told him he was a slow worker. Lauren

Shanks has severe anxiety. One time, while driving, she pulled to the side of the road,

called her mother, franticly crying, because she had so many things going on her life that

she did not know what to do. Her mother remarked that Lauren “is not managing well.”

Lead: Sources of Exposure and the Effects of Lead Poisoning

All sixteen children were eventually diagnosed as having elevated levels of lead

in their bodies – or in short, lead poisoning. Lead enters the body principally through

ingestion and inhalation. The lead is then absorbed into the bloodstream and distributed

to all body tissues. Exposure to lead can cause a myriad of serious and devastating

effects in young children. This is so because the most crucial and rapid time for brain

growth and development is during the last trimester of pregnancy and the first five to

seven years after birth. 2 “Holes in the brain” – this is how their expert described the

brains of children who are exposed to lead at levels suffered by the children. With such

elevated levels of lead, a child suffers significant brain loss in the very portions of the

brain responsible for reasoning, attention, short- and long-term memory, motor function,

2

The children all lived in Herculaneum and were exposed to lead at some point from their time in utero to

when they were six years of age.

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integration of function, and sensation. 3 This significant loss of brain tissue has grave

implications. Lead in children can cause cognitive and neuropsychological problems,

learning disabilities, mental retardation, decreased intelligence, IQ loss, 4 attention deficit

hyperactivity disorder (ADHD), 5 as well as psychiatric and behavior problems.

Furthermore, lead can cause nervous system and kidney damage, asthma, hearing loss,

decreased muscle and bone growth, poor muscle coordination, convulsions, seizures, and

even death.

Exposure to lead as a child can also lead to many problems in adulthood.

Exposure to lead puts one at an increased risk of hypertension (high blood pressure),

which can lead to strokes. Lead can also cause numerous problems during pregnancies.

Women with significant amounts of stored lead in their body have an increased risk of

problems with pregnancy, including premature birth, spontaneous abortion, toxemia, as

well as problems with metabolism and blood pressure. Also, lead affects the fetus. Lead

present in the mother’s body crosses the placenta to the fetus in a proportionate amount.

A child at birth will have essentially the same blood lead level as the mother. Moreover,

a mother’s blood lead level rises during pregnancy because lead stored in the mother’s

bone migrates into the bloodstream, further increasing the exposure and lead levels of the

fetus. Lead in a fetus can cause significant harm, including brain damage or death. In

3

One study has shown up to a 1.2 percent brain loss in those exposed to lead levels of 5 micrograms per

deciliter or above. The children’s levels in this case were all much higher than five.

4

Dr. George Rodgers, testifying on the children’s behalf, noted that it is broadly accepted by the scientific

community, since the early-to-mid 1970s, that lead causes IQ loss. On average, one loses one IQ point for

every three to five micrograms of lead in their blood. For example, if one has a blood level of twenty, then

it is estimated that the person has lost somewhere between four and seven IQ points. According to Dr.

Rodgers, several papers published in the last ten years estimate a higher loss – that one loses seven IQ

points in the first ten micrograms per deciliter of lead. In other words, if a child’s lead level is ten, that

child has lost seven IQ points.

5

As recently as the mid-to-late 1980s, Attention Deficit Disorder (ADD) and ADHD were two separate

diagnoses under the DSM – the diagnostic statistical manual, an important guidebook that sets out criteria

for diagnoses of psychological disorders. ADD had no hyperactivity; ADHD did. Now there is a single

diagnosis – ADHD, in three types: primarily inattentive, primarily hyperactive-impulsive, and combined.

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particular, lead prevents the growth and maturation of the nervous system and causes

dissolution or loss of brain tissue in the growing fetus.

Exposure to lead may occur from a variety of sources. In years past, lead-based

paints and lead in gasoline were common sources of exposure. The United States

government, however, banned lead from paint and gasoline in the late 1970s, and so

exposure to lead from these sources has greatly decreased. While lead-based paint may

still be present in older homes, the more common sources of lead exposure now are lead-

containing air emissions, contaminated ground water, and contaminated soil. In

Herculaneum, the children’s exposure to lead came from the air and contaminated soil;

contaminated water was not an issue.

Lead levels in children who live in lead-laden environments fluctuate over time.

Typically, lead levels will start to rise when children begin to crawl, around six months to

one year in age. No longer immobile, children are now down on the floor, in the dust,

and they start putting anything and everything in their mouth as they explore their world.

Lead levels reach a peak during the toddler years – at 18 to 36 months. Children at this

age are more active, but they lack the discrimination to avoid things that might be

harmful. They are now able to walk, unattended by family members, and they still put

things in their mouth, not knowing any better. Children at this age also have rapid

respiration rates, and they absorb nearly all the lead they breathe into their bloodstream.

All of this increases the amount of lead young children take into their bodies.

Once children reach the age of four or five, they generally are more

discriminating and stop putting everything into their mouth. And their respiration rates

decrease. Thus, their intake of lead declines, and correspondingly, their blood lead levels

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begin to decline. But, this does not mean that the lead has left the body and is gone.

Quite the contrary. Lead gets stored in bone and soft tissues – the kidneys, heart, liver,

and most especially the brain – and it remains there for years, slowly leaching over time.

While the half-life of lead in the bloodstream is generally about a month, the half-life of

lead stored in the brain is about two years. 6 The half-life of lead in bone is more than

twenty-five years. Levels decrease at a slower rate in those who are living in an

environment where they are being constantly re-exposed to lead. And the lead continues

to cause harm while stored in tissue. Put bluntly, the lead programs cells to die.

CDC Levels of Concern

Childhood lead poisoning has long been a problem in this country. Over the

years, the Center for Disease Control (CDC) has set “levels of concern” regarding blood

lead levels. According to the CDC, a “level of concern” is a level that should trigger

public-health actions. In 1985, the CDC set a level of concern at 25, adjusted down from

30. 7 In 1991, the CDC lowered the level of concern to 10. The CDC also issued

guidelines in 1991 stating that the presence of a large proportion of children with blood

lead levels in the range of 10-14 should trigger community-wide activities to prevent lead

poisoning.

The level of concern is not a level below which children are safe. Although some

mistakenly think of the level as a level of safety, the CDC has never considered the levels

of concern to be levels below which there is no toxicity. Dr. George Rodgers, a

pediatrician, toxicologist, and member of the CDC Advisory Committee on Childhood

6

“Half-life” of lead means the length of time it takes to get rid of half of the amount of lead.

7

The blood lead levels here, and throughout the opinion, are expressed in terms of micrograms of lead per

deciliter of blood (µg/dL).

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Lead Poisoning, explained that it has been long known – for more than thirty years – that

lead has toxicity well below the levels of concern. Toxic effects even occur at very low

levels of lead. In short, there is no safe level of lead.

Children’s Lead Levels

Once they were tested, the sixteen children all had high levels of lead. Test

results from the early 1990s show the children with blood lead levels anywhere from 9 to

24. Studies show that during the time period of 1988 to 1991, the mean blood lead level

in the country, for children ages one to five years of age, was 2.8. For the time period of

1991 to 1994, the mean level was essentially the same, at 2.7. The sixteen children’s

levels far exceeded these means. Gabe Farmer, for example, tested at nearly five times

the national average. Jeremy Halbrook tested at six times, and Bryan Bolden tested at ten

times the national average.

Some of the children were tested in 1992; the majority were tested in 1994 and

1995. By this time, many of the children were past their toddler years, and thus past the

age of peak lead levels. Still, their levels far exceeded the national average. Dr. Rodgers

explained that those children would have had even higher levels when younger. Gabe

Farmer, for example, had a likely peak level of 31.2. Jeremy Halbrook had a likely peak

level of 25.2. The children’s exposure histories and test results, provided by Dr. Rodgers,

appear in Appendix A.

ADHD and the Children’s Diagnoses

All sixteen children were diagnosed with ADHD, as well as loss of IQ due to their

exposure to lead. Their complete diagnoses appear in Appendix B. ADHD is a

neurological, neuropsychiatric disease. Essentially, a person with ADHD does not have

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the ability to pay attention adequately to function in academic, social, and workplace

settings. The salient features of ADHD are inattention, hyperactivity, and impulsivity.

Those with inattention fail to give close attention. They tend to daydream. They are

disorganized and forgetful. They often get distracted by extraneous stimuli and lose

focus. They have difficulty sustaining attention in tasks or play activities. Those with

hyperactivity are very fidgety and very restless. They are always on the go, and are

described as being “driven by a motor.” Those with the impulsivity aspect of ADHD

tend to act first before they think. They are incapable of considering the consequences of

their actions. The most common, pervasive type of ADHD is the combined type, where

an individual experiences all three features – inattention, hyperactivity, and impulsivity.

This form of ADHD is the most impairing. Ten of the children here were diagnosed with

this type of ADHD.

Several medications attempt to temper the symptoms of ADHD. As seen with

Jeremy Halbrook, however, those medications come with significant side effects. They

can cause one to feel like a zombie, and to have a loss of appetite, leading to significant

weight loss.

ADHD is a lifelong problem. Over seventy percent of those with ADHD never

outgrow the disorder. The hyperactivity and impulsivity may decrease as one becomes

an adult. The inattention, however, never gets better for most. Rarely are these people

successful. ADHD affects one’s life pervasively. Those with ADHD struggle in school,

they struggle at work, and they struggle to have meaningful relationships.

ADHD never occurs in isolation. A number of other disorders, such as

depression, anxiety, oppositional defiant disorder, obsessive-compulsive disorder,

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mood/bipolar disorder, and antisocial personality, occur together with ADHD. These

disorders, like ADHD, impair a person’s performance in school and in the workplace, and

affect a person’s relationships. The disorders can be crippling, to the point of rendering a

person unable to function.

Ten to thirty percent of patients with ADHD have depression. Compared to the

general population of those who do not have ADHD, those with ADHD have three to six

times more depression, three to six times more alcohol and drug abuse, three to six times

more divorce or separation, three to six times more automobile accidents, and three to six

times more suicide attempts and suicides. Ten to thirty percent of those with ADHD also

have anxiety. They become very anxious that they cannot concentrate, finish projects, or

be as productive as desired. They describe themselves as feeling all wound up like a

rubber band, tight as a drum. Anxiety often occurs with depression.

Fifty percent of those with ADHD have oppositional defiant disorder – a rejection

of authority. They do not submit to authority, and want things their way. Twenty to forty

percent of those with ADHD have an obsessive-compulsive disorder. Those with ADHD

have an increased risk of a mood or bipolar disorder, described as the roller-coaster ride

of emotions. An antisocial personality is yet another example of a neuropsychiatric

disorder experienced by those with ADHD. Such a person is unable to interact with and

respond to others in normal fashion. They may be confrontational, and they may become

agitated and irritated with others, with or without provocation. As a result of not being

able to connect or interact well with others, they are withdrawn and shy, and often

become socially ostracized. In their judgment, it is safer for them to be shy and

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withdrawn than to risk the sociological and emotional consequences of not being able to

connect with people.

Carl Hansen, a vocational rehabilitation counselor, testified specifically about

ADHD’S effect on a person in the labor market. He noted that those with ADHD rank

“significantly lower” in occupational status. They are less likely to attend college and, if

attending, are less likely to graduate. They receive poor job performance ratings and are

more likely to be fired. They use more sick leave and have a higher risk of workplace

accidents than those who do not suffer from ADHD. They quit jobs impulsively and

have chronic unemployment problems. Over the course of their career, those with

ADHD will lose a significant amount of time in the labor market – ranging from fifteen

to thirty percent of work time lost – due to their disorder. Dr. Hansen opined that the

children here would be unlikely to receive a college degree, and that all had suffered a

significant loss in earning capacity, ranging anywhere from nine thousand to twenty-five

thousand dollars per year, depending on the child’s circumstances.

Physicians testified that the ADHD and the other conditions suffered by the

children in this case were permanent and serious, and were caused by the children’s

exposure to lead emanating from the smelter.

Children Sue the Doe Run Company Partnership

The children sued the partners of the Doe Run Company partnership for

negligently exposing them to lead. The children alleged numerous and wide-ranging acts

17

of commission and omission by the partners. 8 In sum, the children alleged the

partnership knew of the lead contamination present and occurring in the community, and

knew of the danger and the harm lead posed, but sacrificed the health of children for

greater profits. The children sought compensation for their injuries, as well as punitive

damages. Several parents explained why they sued. Matthew Heilig’s mother said it was

“heartbreaking” to see her son the way he was. Ashley and Lauren Shanks’s mother

noted that for years Doe Run knowingly poisoned her children. Isaiah Yates’s father

sued because his son was poisoned and because the company showed indifference and

8

In particular, the children pleaded defendants were negligent in one or more of the following respects:

(a) Permitted lead and other harmful metals and substances to be mined, generated, smelted,

processed, released, dumped, deposited and placed into the air and deposited onto the

land when defendants knew, or by the exercise of ordinary care should have known, that

the mining, generating, smelting, releasing, dumping, depositing, handling, storing,

treating, transporting, loading, unloading and disposing of such toxic substances was

dangerous and harmful to the public, and more particularly, plaintiffs;

(b) Failed to adequately and properly monitor and control the emissions and release of lead,

metals and toxic substances into the air and environment by failing to report and act, or to

timely report and act, upon instrument readings and warnings, and by utilizing, and knew

or should have known of the utilization of, equipment and instruments which were altered

and not adequate or proper and/or which were not adequately or properly calibrated or fit

or suitable for use;

(c) Doe Run defendants failed to adequately and properly supervise the safe mining,

generating, smelting, releasing, dumping, depositing, handling, storing, treating,

transporting, loading, unloading and disposing of the aforedescribed lead, metals and

other substances;

(d) Doe Run defendants failed to adequately and properly control the mining, generating,

smelting, releasing, dumping, depositing, handling, storing, treating, transporting,

loading, unloading and disposing of the aforedescribed lead, metals and other substances;

(e) Doe Run defendants failed to adequately and properly contain the mining, generating,

smelting, releasing, dumping, depositing, handling, storing, treating, transporting,

loading, unloading and disposing of the aforedescribed lead, metals and other substances;

(f) Failed to warn, or to adequately warn, the public, and more particularly plaintiffs, and

children, parents, school administrators, church officials and residents of Herculaneum,

of the dangers, hazards, and risks of exposure to lead, metals and substances mined,

generated, smelted, processed, released, dumped, deposited, handled, stored, treated,

transported, loaded, unloaded and disposed of by defendants;

(g) Doe Run defendants mined, generated, smelted, processed, released, dumped, deposited,

handled, stored, treated, transported, loaded, unloaded and disposed of the lead, metals,

and substances aforedescribed in a harmful and dangerous manner;

(h) Doe Run defendants violated environmental standards, statutes and regulations, including

but not limited to: section 643.151 Revised Statutes of Missouri stating that it is unlawful

to pollute the air; 10 CSR 10-6.010 entitled “Ambient Air Quality Standards,: and 10

CSR 10-6.120 entitled “Restrictions of Emissions of Lead From Primary Lead Smelter-

Refinery Installations.”

18

put fault at his feet. Austin Manning’s mother put it bluntly. She brought suit because

her son suffered from being poisoned, and because “[n]obody should make money off of

kids suffering.”

The Smelter & The Doe Run Company Partnership

At the time the children sued, the Herculaneum smelter had been in operation for

over one hundred years, processing lead ore concentrates into purified lead. 9 St. Joseph

Lead Company, later named St. Joe Minerals Corporation, owned and ran the smelter

until 1986, at which time the newly-formed Doe Run Company partnership assumed

ownership and operation of the smelter. This general partnership, with various different

partners, owned and ran the smelter for eight years, from November of 1986 until March

of 1994. The current action is against three of the partners from this partnership period:

Fluor Corporation, A.T. Massey Coal Company, and Doe Run Investment Holding

Corporation (DRIH). 10 The children advanced two theories of liability. They first sued

each defendant separately, seeking to hold each defendant liable based on the defendant’s

and the partnership’s negligence during the time each defendant was a partner. The

children sued Fluor on an additional “domination” theory, seeking to hold Fluor liable

9

In March of 1864, during the Civil War, a group of New York investors founded the St. Joseph Lead

Company, a mining company and predecessor to The Doe Run Company. The company’s original lead

mine and smelter operations were located at Bonne Terre, Missouri. In 1886, the trustees approved local

management’s proposal to form a small company, to establish a mine on Doe Run Creek. Around 1890,

this company began extensive drilling in the vicinity of Flat River, now Park Hills, Missouri, and

discovered a rich body of ore. Construction of the Herculaneum smelter followed in 1892. The smelter

operated continuously for the next 121 years.

A source outside our record reports that operation at the smelter ceased and the smelter closed at the end of

2013. Leah Thorsen, Smelter’s Closure is End of Era in Herculaneum, St. Louis Post-Dispatch, December

15, 2013. We mention this for the reader’s benefit. Obviously, we do not consider matters outside the

record in our consideration of this appeal.

10

In all, the children sued eight entities; they proceeded to trial against only three: Fluor, Massey, and

DRIH. Massey is now known as Appalachia Holding Company.

19

because of its complete and pervasive control of its subsidiaries that were partners in the

Doe Run partnership.

The Doe Run partnership conducted a lead business of wide-ranging proportions

and on a far-reaching scale, both nationally and globally. When forming the partnership,

the partners combined their respective lead businesses, and contributed a number of their

assets, including the Herculaneum smelter to the partnership. The resulting partnership

owned and controlled many of the lead mines in Missouri, as well as the Herculaneum

and the Buick smelters – two major smelters in southern Missouri. 11

The two original partners of the Doe Run partnership were Homestake Lead

Company of Missouri and St. Joe, a wholly-owned subsidiary of Fluor. 12 Over the life of

the partnership, the two original partners transferred or sold all or part of their interest in

the partnership. The transfers on the St. Joe side of the partnership were all to various

subsidiaries within the Fluor corporate family. Fluor purchased Homestake’s entire

interest in the partnership in 1990. The particulars of the partnership history – when and

how the various partners came into the partnership – are not especially relevant. More

important is the fact that the three defendants were partners at some point during the

partnership, and that various subsidiaries of Fluor were partners during the entirety of the

partnership. The children contend Fluor so dominated its subsidiaries that Fluor

effectively was a partner, and therefore liable, for the entire duration of the partnership.

11

The Buick smelter was located in Boss, Dent County, Missouri. Generally, smelters are classified as

either “primary” or “secondary” smelters. A “secondary” smelter is one that smelts scrap metal and

materials rather than ore from the ground. Smelters like the one at Herculaneum that smelt ore are referred

to as “primary smelters.” The decision where to base primary smelting operations – at Herculaneum or at

Buick – was one of the early decisions confronted by the new partnership. The Buick smelter was located

in a relatively unpopulated area. The partnership chose Herculaneum, however, because of the amount of

lead that could be smelted there. Internal documents expressly note the choice was profit-driven.

12

Fluor had acquired St. Joe in 1981.

20

In order to complete the Herculaneum story, we set forth a brief recitation of the

partnership’s historical background in Appendix C.

Fluor’s Influence over Partnership

A partnership committee ran the partnership until 1990. 13 Initially, the St. Joe

representatives on the partnership committee were St. Joe employees. That soon

changed. By February of 1988, St. Joe had appointed three high-ranking Fluor officials

to be its representatives. 14 The insertion of Fluor personnel into partnership committee

roles, while not improper, signaled a change in Fluor’s involvement with the partnership.

Although not a partner until 1990, Fluor was extensively involved in partnership affairs

prior to that time, to the exclusion of named partners St. Joe, Massey, and DRIH. Fluor

was repeatedly referred to as being a partner, its approval was needed for partnership

projects, and it received partnership cash distributions. Once Fluor purchased

Homestake’s partnership interest in 1990, and even after Fluor transferred its partnership

interest to a wholly-owned subsidiary, Fluor considered and represented the Doe Run

partnership as “100% Fluor.” Fluor treated Doe Run as a corporate subsidiary, and

continued to be extensively, if not exclusively, involved in running the partnership. We

provide a summary of Fluor’s influence over the partnership in Appendix D.

Smelting Process & Emissions

Missouri probably has the best lead ore in the world. A large deposit of high-

grade lead ore is located in southeastern Missouri. The essential business of the

13

The partnership committee stopped meeting and ceased to exist in 1990. See Appendix D for further

details.

14

The three Fluor officials appointed to the partnership committee were: Leslie McCraw, then president of

Fluor; Robert Guyett, the chief financial officer; and Vincent Kontny, a high-ranking officer and later

president of Fluor.

21

Herculaneum smelter was to process that ore into purified lead. The smelting process is a

multi-step process, which begins at the mine site. Once the ore is brought to the surface

of the mine, workers grind it up to a fine consistency, somewhere between the

consistency of table salt and baby powder. Workers then run this ground-up rock through

a chemical process, which separates out the lead from rocks and other materials, to form

lead concentrate. Workers dry the lead concentrate to a consistency of wet beach sand

and then load the concentrate into trucks or rail cars for shipment to the smelter.

The high-grade lead ore in Missouri is actually lead sulfide by constitution. The

smelting process removes the sulfur and other trace metals present in the ore, in order to

produce pure lead. Once the lead concentrate arrives at the smelter, it is dumped out of

the trucks or rail cars. Smelter workers then load the material onto a conveyor-belt

system, which moves the material through the smelter. The lead concentrate is first

conveyed into the sinter plant building. There, the lead concentrate goes into a sinter

machine, which heats up the concentrate to a very high temperature, burning off the

sulfur. 15 During this process, the lead concentrate partially melts and becomes fused

together. This fused-together material, called sinter, is broken up into fist-sized material,

and then conveyed over and fed into the blast furnace. The blast furnace turns the sinter

material into a molten, metallic form. The molten material that comes out of the blast

furnace is still not pure lead, however. Trace metals and other organic materials, such as

copper, zinc, cadmium, and arsenic, are still present. To separate and remove those trace

metals, the molten lead is placed into a kettle and run through a refining process. In the

end, one has purified lead.

15

The burnt-off sulfur is in the form of sulfur dioxide, which has a very strong odor. This is what the

residents smelled in the community.

22

One word concisely describes the smelting process: dusty. Or better yet, two

words: extremely dusty. Lead-containing dust is everywhere throughout the entire

smelting process. And once that dust gets into the air, it disperses into the surrounding

community.

Emissions from smelters are divided into two general categories: point-source

emissions and fugitive emissions. Point-source emissions are those that are captured, put

through some sort of collection device or system, and then sent up and discharged out a

chimney, called a stack. Fugitive emissions are everything else – those emissions that are

not captured and sent up the stack, but rather escape the facility to the nearby community

in any other manner. Fugitive emissions come from any number of sources at the

smelter. For instance, unloading the lead concentrate when it first arrives at the smelter

may stir up and release dust into the air. To unload lead concentrate from a rail car, a

large machine takes that car, tips it upside down, and then shakes out the concentrate.

Although lead concentrate is usually moist, it dries out on hot days, and thus when the

rail car is tipped over, dust goes everywhere. An individual rail car typically holds one

hundred tons of concentrate. Workers unload the rail cars in an open, unenclosed area,

across the street from where people live. Another source of fugitive emissions is the

conveyor belt, which during the partnership period was not fully enclosed. The sinter

plant and blast furnace are large sources of fugitive emissions. The sinter plant building

is also not totally enclosed. The building has four walls, but its top is completely open.

The sintering machine operates at 1500 degrees or more, so the building is designed to

draw the hot air up and out of the building through the open top. It is common for lead

dust to be everywhere in the sinter plant, and so the air that escapes is full of lead dust.

23

The same scenario is repeated in the blast furnace. The roof on the blast furnace is also

open, the room is extremely dusty, and the air that escapes is full of lead dust. Fugitive

emissions also originate from slag piles and other open areas on the grounds where dust

settles. 16 The movement of vehicles in and out of the plant, kicking up dust, is yet

another source of fugitive emissions.

Fugitive emissions were primarily responsible for the lead contamination faced by

the children. A model predicted that up to ninety percent of the lead contamination

within one mile of the Herculaneum smelter came from fugitive emissions. As explained

at trial, lead-containing fugitive emissions settle relatively quickly and relatively close to

the smelter. Fugitive emissions, unlike the point-source emissions from the stack,

generally originate at a low height above the ground, and disperse without velocity

behind them. 17 Without height and velocity, the impact of the fugitive sources tends to

be much closer to the facility. Furthermore, lead sinks. Lead particles are very heavy

and quite dense, and therefore descend to the ground fairly quickly.

Lead dust emitted from the Herculaneum smelter readily contaminated homes and

yards in the nearby neighborhoods. Lead dust settled on the streets and soil, and blew

into the homes through open doors and windows. Moreover, if not blown away or

washed away with the rain, lead accumulates, forever remaining lead – it never changes

into any other element.

16

Slag is the by-product material from the smelting process. Although waste material, slag still contains

lead that was not recovered during the smelting process. The slag at the Herculaneum smelter was gathered

into piles. Dust can blow off those piles. Additionally, in years past, before 1981, the slag was ground up

into a gravel or sand-like material and used as road base, and spread on icy roads for traction. Over time,

the material on and in the roads would break down further and eventually settle as dust in people’s yards.

17

Point-source (stack) emissions and fugitive emissions disperse and settle in different ways. Stacks tend

to be directed in an upward direction, so the emissions have a velocity behind them in order to go straight

out of the stack. Furthermore, stacks are high and thus disperse the toxic chemicals into the atmosphere at

a high elevation. Emissions from stacks, therefore, disperse and settle a distance away from the plant.

24

Increase in Production

Production at the Herculaneum smelter increased forty percent between 1981 and

1989. In 1988, the smelter produced 236,000 tons of lead, yielding a net income of 60

million dollars for Doe Run. Lead production reached a record high in 1989, with the

smelter producing an “impressive” amount – 248,572 tons – of lead. By 1989, the

Herculaneum smelter was the largest lead smelter in North America, and one of the

largest in the world. 18 This increased production coincided with an increase in market

prices and profitability.

The increased production produced a staggering amount of emissions. In 1987

alone, the Herculaneum smelter emitted 179 tons of lead emissions. Of this, 98 tons were

fugitive emissions that poured out into the surrounding neighborhood. The smelter

emitted the same or similar amounts of fugitive emissions every year in the 1980s.

Ninety-eight tons is equivalent to approximately four or five tractor-trailer truck loads of

lead dust.

It was during this time period of increased, record-high production and increased

market prices, that Doe Run came under growing pressure from regulatory agencies to

reduce emissions of hazardous materials from the Herculaneum smelter.

National Ambient Air Quality Standards

The United States Congress in 1970 enacted the Clean Air Act, which required

the Environmental Protection Agency (EPA) to set national ambient air standards –

regulatory limits – for certain pollutants. 19 In 1978, the EPA set the maximum

18

Fluor issued a press release in May of 1990, in which it stated that Doe Run, as the largest fully-

integrated lead producer in North America, had approximately 60% of the total U.S. market.

19

Officially, these standards are called National Ambient Air Quality Standards.

25

permissible air concentration of lead at 1.5 micrograms of lead per cubic meter of air,

averaged over a quarterly period. The EPA required smelters to meet this 1.5 level at the

fence-line of their facilities. The fence-line is the boundary of the facility – the line

between the smelter property and the surrounding neighborhood. The EPA adopted this

particular 1.5 level to protect the health of those most sensitive to lead exposure,

particularly young children. Doe Run and the smelter never met this national 1.5

standard at any point during the partnership period.

Lead Industry: Knowledge of Dangers & Fight against Regulations

Testimony at trial confirmed that the lead industry has long known the dangers to

children posed by lead. In the early 1900s, journal articles around the world recounted

studies of children who had been poisoned by lead paint. In 1908, at a time when child

labor was quite common, National Lead banned children from working in leaded areas of

their plants. 20 The lead industry has also long known that smelters’ emissions pose a

danger to surrounding communities. In early days, farmers sued smelters when their

cows died after ingesting grass covered with lead and other toxins emitted from the

smelters.

The Herculaneum smelter and its ownership groups have long been an integral

part of the lead industry. In 1928, various lead producers and users formed the Lead

Industries Association (LIA), a trade association designed to ensure that members’ lead

products remained shielded from public attack and from competition. 21 High-ranking

20

National Lead operated lead mines and smelters, and produced pigment for paint.

21

The LIA represented a whole series of industries, such as smelters, paint manufacturers, and battery

makers, that depended upon or sold lead.

26

executives from the Herculaneum smelter were directly involved in the association from

its inception. This involvement continued into the partnership period. 22

The lead industry’s fight against regulation is equally longstanding. From the

1920s all the way through the partnership period, the lead industry has continuously,

consistently, and aggressively fought any attack on lead – be it from medical studies,

negative publicity, or proposed regulatory actions. 23 The industry’s efforts included a

“full frontal assault” in the late 1970s on the EPA’s proposed ambient air standard. The

association’s environmental committee met specially in 1977 and devised an all-out

public-relations effort in opposition to the planned regulations, to convince the regulators

and the public that the proposed standard would be costly for the industry and would

likely hurt local economies by jeopardizing employment and the tax base. The industry

challenged the proposed ambient air standard even though the industry knew the standard

22

The first president of LIA was also president of the St. Joseph Lead Company, which operated the

smelter. He was replaced in the late 1940s by another executive from St. Joseph. The secretary of the

association during the twenties, thirties, and forties was also from St. Joseph. This involvement in the

association’s leadership continued into the partnership period. Jeffrey Zelms, president of Doe Run, served

as president and chairman of the LIA during the partnership period. Daniel Vornberg, the partnership’s

director of environmental affairs, served on the association’s environmental health committee throughout

the 1980s and early 1990s. The partnership itself, upon formation in October of 1986, agreed that the

company become a member and participate in the LIA.

23

The association’s efforts were numerous and wide-ranging. From the beginning, they approached

legislators who were concerned about lead and asked them not to pass legislation. They visited and

challenged physicians who claimed that their young patients had been poisoned by lead, insisting that the

physicians were mistaken and that what they were seeing was not really lead poisoning. The association

even threatened physicians with libel suits if the physicians persisted in their claim that children were being

poisoned by lead. In one famous example from 1943, the association threatened Dr. Byers of Boston with a

million-dollar suit. Byers, a Harvard physician, had published a widely-publicized article about children

who were poisoned by lead and had permanent damage. In that report, Dr. Byers stated that hyperactivity

and attention problems were a lasting legacy of having ingested lead. Dr. Byers felt so threatened by the

association that he did not publish another article about lead for ten years. The association, from its

inception, was also active on the public-relations front. In the 1930s, the association ran a massive

promotional campaign to promote the use of lead paint and shape public opinion in favor of lead paint,

even though numerous medical articles showed that children were being poisoned by lead paint. The lead

industry strenuously opposed efforts to remove lead from paint and gasoline at every turn, from as early as

the 1920s. They argued that the movement to remove the lead was in response to researchers who did not

understand the social, economic, or health effects of low-level lead exposures. Indeed, by claiming that it

could not be shown that lead posed a long-term danger, the industry managed to get lead back in gasoline

after a two-year ban in the 1920s. The industry’s opposition persisted for 50-60 years, until the late 1970s

and early 1980s, when lead was finally removed from paint and gasoline.

27

was selected to protect children, and that mounting evidence showed that children were

developing problems at very low levels of lead exposure.

Then came the Needleman report. Dr. Herbert Needleman, an eminent physician,

released a very critical study in 1979 that put to rest the idea that lead could be used

safely. Dr. David Rosner, a public-health expert, characterized Needleman’s study as

very damaging and important because it convincingly demonstrated that lead was

dangerous at much lower levels than previously realized. According to Dr. Rosner, the

industry was outraged. The study undermined the industry’s arguments that exposure to

lead was from some other source, such as lead paint, and that lead was a problem of the

past. The industry also feared that evidence of low-level damage meant that the

government might lower the ambient lead level even further and take lead out of

gasoline.

In fact, the government did require the removal of lead from gasoline. And once

all lead was removed from gasoline, lead in the air declined. And then, as airborne lead

declined, so did the lead content of children’s blood. All of this demonstrated that

reducing lead in air effectively protected children. Dan Vornberg, the environmental

manager at St. Joe and later director of environmental affairs for the Doe Run

partnership, bemoaned these results, writing, “The most difficult data to deal with will be

a study which has been represented to show that children’s blood levels are dropping in

strict correspondence to air lead decrease and gasoline phase down.”

Despite mounting evidence of the dangers and detrimental effects of lead, even at

low levels, the industry continued its fight. In 1983, the association discussed a three-

year public-relations campaign to try and raise lead’s “pitiful” image. The proposed

28

campaign came on the heels of a plethora of articles reporting the dangers of low-level

lead, and at a time when, in Dan Vornberg’s words, multimillion-dollar lawsuits were

“mushrooming” and anti-lead regulations were “epidemic.” The lead industry’s fight

against regulation and its challenge to the conclusion that children were being affected by

lead continued into the partnership period. In 1987, the partnership, along with other

industry allies, sponsored research to create uncertainty and call into question the

scientific consensus on the dangers of lead established by Dr. Needleman and other

scientists. Ultimately, researchers funded by the lead industry published a series of

articles stating that lead did not cause neurobehavioral problems in children.

The EPA re-evaluates the ambient air quality standard for lead every five years.

The agency first revisited the lead standard in 1983, and considered lowering the level

below 1.5. In 1987, the agency considered lowering the standard to 0.5. The lead

industry fought the EPA at every turn. Doe Run especially opposed lowering the

standard. In writing about the standard and Doe Run’s strategy, Dan Vornberg noted a

half-billion dollar cost to primary smelters should the EPA implement a 0.5 standard.

Based on the proposed cost, and what it saw as a “minimal” reduction in blood lead

levels from the measures, Doe Run suggested the following alternative approach:

The approach suggests that in lieu of the 0.5, if you meet the 1.5 standard,

you take other steps ONLY if the blood leads of the children in the

community are elevated. If a survey shows no problem, then nothing

further is required. If specific children are elevated, then specific steps

should be taken to help them – buy out, resodding, education on cleaning,

etc.

This could prevent very large expenditures for air pollution control

equipment and broad scale soil cleanup where there are no public health

problems.

29

“Canaries in the coal mine” is how Dr. Rosner characterized Doe Run’s proposed

strategy. He explained that Doe Run was essentially going to use the children as guinea

pigs to find out whether or not a problem existed. Waiting for the children to be injured,

according to Rosner, was bad public-health policy and immoral. Dr. Rosner explained

that the proper public-health approach was to make sure that children did not get

poisoned in the first place, because lead poisoning is permanent. You do not recover.

Doe Run should have been looking for ways to prevent the lead exposure, and making

sure the children were not injured.

Evidence of the detrimental effects of lead continued to accumulate in the late

1980s. A study, published in The New England Journal of Medicine in 1988, indicated

that no clear threshold may exist below which mental development is not adversely

affected. A memo circulated throughout the lead industry, reporting on recent studies,

stated: “As little as one-tenth ppm lead exposure can impair mental development in

newborns. This damage is believed to be permanent.” A study published in 1990,

reported in both The New England Journal of Medicine and reprinted in The Los Angeles

Times with the headline “Lead Exposure May Be Permanent, Study Finds,” noted that

childhood exposure to high lead levels resulted in inferior performance, such as failure to

graduate from high school, increased absenteeism, reading disabilities, and low scores on

tests measuring vocabulary, grammatical reasoning, fine motor skills, and hand-eye

coordination. The study concluded that exposure to lead in childhood was associated

with deficits in central nervous system functioning that persist into young adulthood.

High-ranking Doe Run officials received copies of all these studies.

30

After years of insisting that lead was safe, the industry changed its public message

in 1990. Jeffrey Zelms, then president of Doe Run and chairman of the LIA, in testimony

before the Senate oversight committee as chairman of the LIA, recognized that lead was a

toxic material. Dr. Rosner explained that LIA’s express recognition of lead as a toxic

material was a very new position. Until this point in time, Rosner explained, the LIA had

denied virtually every attempt to identify lead as a toxic material, except in very, very

high doses. The industry acknowledged they had, in some sense, lost the scientific battle.

The industry could no longer provide alternative theories why children were developing

lead poisoning. And so the industry switched approaches, and began explaining away the

problems with lead as a problem from the past. According to Rosner, the industry

blamed the dangers to children on past events, and argued that the industry had reformed

its ways and was now safe, and therefore should not be held responsible. Rosner

remarked on the irony, that in touting the industry’s advances and increased

environmental awareness, the industry tried to take credit for what had been imposed on

them – the removal of lead from paint and gasoline – measures they had opposed at every

turn.

Despite having publicly acknowledged that lead was toxic, the industry

nevertheless continued its fight against regulation. They still advanced the notion that

lead production involved little danger to the community. The lead industry knew in 1990

that 45% of children living around smelters in the country had blood lead levels over 10,

yet the industry persisted in fighting any changes in the ambient air standard or in the

CDC’s level of concern. The industry viewed the EPA’s proposed revision of the air

standard downward to 0.5 to be of only marginal benefit to the few people who lived in

31

very close proximity to lead facilities and of no benefit whatsoever to the efforts to

reduce blood lead concentrations across the country. In the industry’s view, only 150

children would be minimally aided by revising the ambient air standard. The EPA

ultimately did not change the standard. Continuous opposition by the lead industry

created enough confusion and obfuscation that the EPA was never able to revise the

standard. The lead industry also pressured the CDC to not adopt a new, lower level of

concern. The industry argued that the potential effects of blood lead levels in the 10-15

range remained subject to scientific debate. And thus, because of this uncertainty, the

CDC should retain the then-current level of concern, which was 25. According to Dr.

Rosner, the industry’s argument was all too familiar. Dating back to the 1920s, whenever

faced with detrimental news or information, the industry argued that controversy still

existed, all in an attempt to stave off further regulation. But, as Rosner explained, by the

early 1990s, no scientific debate existed about the detrimental effects of blood lead levels

in the 10-15 range. The only debate was that which the lead industry tried to foment.

State Implementation Plan

Now let us turn to Herculaneum. The Clean Air Act required the state of

Missouri to develop a plan – called a state implementation plan – for reducing the amount

of lead in the air to meet the national standard. Responsibility for preparing Missouri’s

plans fell to the Missouri Department of Natural Resources (DNR). DNR officials

worked with the lead industry in Missouri, including the Herculaneum smelter, to gather

data, identify their emissions, determine ambient air levels, and then formulate an

attainment plan.

32

Air monitors placed around Herculaneum all showed excessive amounts of lead in

the air. Officials completed a five-year implementation plan for Herculaneum in 1981.

The plan called for a series of control measures designed by the DNR and EPA to reduce

airborne lead levels. Initially, the implementation plan required the Herculaneum smelter

to meet the national 1.5 standard by 1984. The smelter later received a two-year

extension of this deadline. Dan Vornberg wrote in 1985 that it was “unlikely” that the

Herculaneum smelter could meet the national standard by 1986, or “at any time” under

the current regulations. And indeed, the smelter did not meet the national standard in

1986. In fact, Doe Run and the smelter never met the national 1.5 standard at any point

during the partnership period. Mr. Vornberg never told the EPA, the DNR, or the

community that he thought the smelter could never meet the standard.

Violations

The DNR eventually cited Doe Run and the smelter in June of 1989, for

impermissible air lead levels. In fact, Doe Run was cited by two different regulatory

agencies in the late 1980s for lead-related violations: first by OSHA, in 1988, and then

by DNR, in 1989. 24 OSHA cited Doe Run for violating nearly every section of the

OSHA lead standard. OSHA issued 55 citations in all, representing some 300 instances.

The citations covered four major areas: record-keeping, failure to abate, medical removal,

and willful noncompliance with standards. 25 OSHA levied one of the highest fines in the

24

OSHA is the federal Occupational Safety and Health Administration.

25

Among the violations were: exposing employees to lead up to seventy-one times over the permissible

exposure limit; providing improper respirators; failing to implement engineering and work practice controls

to reduce and maintain employee exposure; failing to establish and/or implement written compliance

programs to reduce lead exposure to permissible levels; failing to adequately monitor; failing to provide for

cleaning and/or disposal of protective clothing, and the improper cleaning of that clothing on other

occasions; failing to clean surfaces of accumulated lead, and improperly doing so on other occasions;

failing to prevent cross-contamination between work and street clothes; failing to timely notify employees

33

history of the agency – nearly 2.8 million dollars. Just over a year later, in June of 1989,

the DNR issued a notice of violation to Doe Run and the Herculaneum smelter, for

violating the national 1.5 standard. The DNR required Doe Run to pay a penalty, which

Doe Run succeeded in getting reduced by half. The DNR also required Doe Run to

submit a revised implementation plan that promised installation of control equipment or

reduced production levels necessary to meet the national standard. By this time,

regulators believed it urgent that the smelter comply with environmental standards,

especially the national ambient air standard. The EPA asserted that Doe Run’s

Herculaneum smelter was one of the top ten polluters in Missouri. Indeed, in 1989, the

entire St. Louis region exceeded the national 1.5 standard simply because of the

Herculaneum smelter.

The partnership, like the lead industry in general, was concerned about the impact

of regulations and the proposed downward revisions of the ambient air standard. The

children presented evidence showing the partnership’s disdain for regulations, with Doe

Run officials developing strategies to get around requirements they deemed “excessive”

and “draconian.” As with the lead industry in general, the partnership disagreed with the

1.5 ambient air standard – even to the point of arguing it should not apply to them. The

partnership believed the “unachievable” air lead standards jeopardized the world-wide

competitiveness of the U.S. lead-smelting industry. Yet Doe Run knew that if it did not

improve its airborne lead emissions, regulators would likely order them to comply with

the national standard, without regard to the economics or feasibility of the order. At a

time of high market prices and record-level production, the partnership committee

of high blood lead levels, and failing to promptly remove those employees with high levels of lead in their

blood.

34

worried that regulators would draft a plan that Doe Run could not “afford,” and that EPA

intervention would result in the smelter’s closure. The regulatory pressures to reduce

emissions came at a time when Fluor expressed a desire, in October of 1989, for the

partnership to be a “low-cost producer.” 26

Ultimately, partnership officials and the DNR fashioned a new implementation

plan that committed Doe Run to eight projects designed to bring the plant into

compliance with the national standard by December of 1993. For example, the DNR

ordered the partnership to install a new sinter plant system to reduce the levels of

airborne lead emissions in the Herculaneum area. Doe Run expected revisions to the

sinter plant to eliminate 78% of the fugitive emissions. By 1989, Doe Run knew what its

emissions were, where those emissions were coming from, and they clearly knew that the

smelter violated the national standard. Despite this, the partnership delayed. Despite

promises of eight to ten million dollars in environmental controls, the partnership

committee postponed authorization for expenditures and equipment upgrades.

Air Contamination in Herculaneum

&

The Fence-Line Monitor

We next consider the air and soil contamination in Herculaneum. To measure the

amount of ambient airborne lead and determine the smelter’s compliance with the

26

Some mention should be made that as early as April 1989, Fluor considered selling its interest in the

partnership. A potential buyer visited the site in June of 1989. Allegedly, Doe Run decreased production

to make the site more appealing, and the partnership withheld environmental material from the potential

buyer. The partnership also looked into the economics of shutting down the smelter. Officials knew that

the shutdown and cleanup of the Bunker Hill facility in Idaho cost 100 million dollars. Doe Run officials,

however, believed they could shut down and clean up the Herculaneum smelter for as little as $20 million

dollars, provided the community “didn’t turn on [them] at the eleventh hour and demand a pristine clean

job.” Officials at this time assumed the Herculaneum smelter would operate for another twelve to fifteen

years, and believed that in the end they could “cut a deal” with the EPA for the orderly run-out and shut-

down of the smelter.

35

national ambient air standard, officials placed monitors at various locations throughout

the town. To comply, a facility must comply everywhere, even at the point of maximum

ambient air concentration. An air-pollution control expert explained that the maximum

ambient air concentration will tell the facility what could secure its compliance. He

further explained that to find the maximum concentration of fugitive emissions from a

facility, one should look at the fence-line first, and then work out from there. Typically, a

fence-line monitor will be the monitor with the most fugitive emissions.

But no official fence-line monitor existed at the Herculaneum smelter until 1992.

Prior to this time, the closest monitor to the smelter was located at the high school, about

one-half mile away. Moreover, smelter officials – both before and during the partnership

period – resisted efforts to place a fence-line monitor.

Indeed, smelter officials opposed a fence-line monitor from the inception of the

national ambient air quality standards. In completing the smelter’s implementation plan

in 1982, state regulators requested a monitor be placed across the street from the smelter,

just northwest of the plant, at a point where, according to models, the maximum ambient

air concentration of lead would result from fugitive emissions from the plant. Dan

Vornberg, then St. Joe’s environmental manager, expressly rejected this request on

numerous grounds, including the fact that management was somewhat concerned about

that sector because it was so close to some of the process emissions, and because

management believed the standard to be unreasonable and much more stringent than

necessary to protect public health. Vornberg also refused the request because no public-

health problems existed in the community due to lead emissions from the smelter.

Notably, Vornberg acknowledged that liability and the possibility of community legal

36

action were major reasons for not wanting a public record of any data well above the

national standard.

Opposition to a fence-line monitor carried forward well into the partnership

period. In December of 1986, Dan Vornberg, by now Doe Run’s director of

environmental affairs, and his coworker, Jim Lanzafame, noted that Doe Run might be

able to avoid placement of the fence-line monitor if they could fence off certain areas

from the public where maximum levels would be found. In May of 1988, Lanzafame

stated that Doe Run was “still adamant about not installing the fence-line monitor until

after the controls were in place.”

Smelter officials knew fence-line readings would far exceed the national standard.

To begin, after the EPA established the national lead ambient air standard, environmental

officers from the smelter toured other smelters in the country and learned of the smelters’

problems in meeting the national standard. For instance, upon touring the Bunker Hill

smelter in Idaho, Dan Vornberg learned that the Bunker Hill smelter had a fence-line

monitor that averaged well above the national standard. Bunker Hill personnel expressed

little hope of their fence-line monitor ever reaching the national 1.5 standard.

Beyond this, the smelter in 1979 had privately placed its own monitor across the

street from the smelter, at a building it owned, referred to as the environmental building.

The monitor at this building was at or very near the proposed location for the northwest

monitor – near the smelter and significantly closer to the plant than the high-school

monitor, or any other monitor being used and reported to the state of Missouri and the

EPA. The readings from this private fence-line monitor far exceeded the national

standard. In October and November of 1979, shortly after the EPA established the

37

national standard, the quarterly average ambient air level of lead at the private fence-line

monitor was 32.3, more than twenty times the national standard of allowable ambient

lead. The average for the entire 1979 calendar year was 16.6, more than ten times the

national standard. In 1981 and 1982, Dan Vornberg conceded that the data from this

private monitor was “unacceptable.”

Smelter officials convinced the DNR to use the high-school monitor as the closest

official monitor, and in late 1986, the EPA agreed to “passively support” this location for

demonstrating attainment of the federal standard, despite the fact that models indicated

that maximum levels would be at the old environmental building. A true fence-line

monitoring station was not established until the fall of 1992, when the EPA and the DNR

forced the partnership to install a monitor closer than the high school. The first level at

this location, at the end of 1992, was 5.5. By this time, the smelter had installed some

air-emission control equipment. The level would likely have been higher before the

equipment was installed. Even with the equipment in place, the levels were more than

three times the national standard and allowable limit of 1.5.

Soil Contamination

The smelter contaminated not only the air in Herculaneum, but also the soil.

In 1984 and 1985, smelter officials, under Dan Vornberg’s leadership, conducted

lead testing on dust and surface soil samples taken from areas around the smelter, such as

streets and under swing sets, where children were known to play. The levels were high

throughout the community. Analysis of the samples revealed lead levels ranging from a

low of 50 ppm to a high of 9250 ppm. 27 To place these levels in context, the EPA in

27

The levels of lead in soil are measured in terms of “ppm,” meaning parts per million.

38

1989 set the soil cleanup level for superfund sites at 500-1000 ppm, meaning the EPA

required removal and replacement of soils containing levels of lead greater than 500 ppm.

Smelter officials plotted the results on a map and then divided the town into four pie-

shaped sectors around the plant, centered on the smelter stack. The average lead values

in each sector, for the area within one-half mile of the stack, were all very high: 1458

ppm for sector A; 2258 for sector B; 2239 for sector C; and 1822 for sector D. As to the

particular children involved in this lawsuit, levels are available for locations at or

near the homes of eight of the children. Those levels ranged from 1010 to 4720.28

Although these particular children were born, and resided at these locations after this

testing was conducted, Dr. Rodney J. O’Connor, a chemist with expertise in

environmental chemistry and chemical safety, explained that lead in soil never really

leaves. The only way lead leaves a site is by blowing away in the wind, dissolving and

washing away in water runoff, or by being dug up. Otherwise, the lead remains and

accumulates.

Dr. O’Connor characterized all these levels as being “very high.” He noted that

scientific papers dating back to at least the 1970s showed that lead in soil could be

dangerous. He further noted that, according to those papers, the levels of lead seen in the

1985 testing would be deemed dangerous. Dr. O’Connor observed that, as of the 1980s,

it was widely known that soil levels in excess of 3000 ppm were unsafe. He further

28

In particular, analysis revealed the following levels:

CHILD LEVEL (ppm)

Preston Alexander 1360

Bryan and Tiffany Bolden 1820

Gabe Farmer (age 3-6) 4720

Gabe Farmer (age 7) 2010

Ashley and Lauren Shanks 2010

Isaiah Yates 1010

39

explained that by 1994, soil lead levels over 2000 ppm were also undisputedly considered

unsafe.

Doe Run officials knew of the soil results by at least December 1987, when the

results were summarized in a memo directed to president Jeffrey Zelms, copied to Fluor’s

general counsel, and forwarded to Doe Run’s director of environmental affairs, Dan

Vornberg. The memo also noted the levels at which the EPA was requiring soil removal

and replacement at superfund sites. We find no evidence that the partnership informed

either the EPA or the residents of Herculaneum of these soil test results.

The partnership conducted another soil test in 1990. This time, instead of testing

known play sites, as previously done in 1985, the partnership randomly selected one out

of every three houses within a half mile of the smelter for testing. The partnership

believed that testing every third yard would provide a sufficient measure of the lead

levels present in the neighborhood. They assumed that surrounding yards would have

similar lead concentrations to the ones tested.

Dan Vornberg admitted the partnership expected the levels to be high. And they

were. The tests revealed average soil lead concentrations ranging from a low of 15.5

ppm to a high of 10,150 ppm. Of eighty-five yards tested, only sixteen came back with

levels under 1000, and only three of those results were under 500 ppm. The other sixty-

nine yards had levels above 1000 ppm, and forty-two of those yards had levels above

40

2000. 29 As to the particular children involved in this suit, testing was conducted at or

near the homes of five of the children. The levels ranged from 1132 to 4488 ppm. 30

The partnership was less than forthcoming with these results. Isaiah Yates’s

father specifically testified that no one ever told him what the soil levels were in his area.

Gary Walker, environmental officer for Doe Run, who characterized the results as “fairly

high,” stated that Doe Run sent the results back to the specific residents whose yards had

been tested. But, as to those residents whose yards were not tested, Doe Run relied on

the residents to talk to their neighbors, or to attend a community meeting to learn of the

results.

29

In all, the test results showed:

AVERAGE NUMBER OF

LEVEL OF LEAD HOMES

(ppm)

0-1000 16

1000 – 2000 27

2000 – 3000 17

3000 – 4000 15

4000 – 5000 5

5000 – 6000 2

6000 – 7000 0

7000 – 8000 0

8000 – 9000 2

9000 – 10,000 0

Over 10,000 1

30

Specifically, testing revealed the following levels:

CHILD LEVEL (ppm) RESIDENCE & SAMPLE LOCATION

Patrick Blanks 1858 Lived at 406 Burris; sample from 411 Burris

Nathan Davis 4488 Lived at 774 Circle; sample from 773 Circle

Gabe Farmer 1132 Lived at 375 Mott; sample from 371 Mott

Heather Glaze 3462 Lived at 925 S. Main; sample from 929 S. Main

Jeremy Halbrook 2527 Sample taken from Halbrook yard

41

Blood Tests

In 1984, the smelter conducted community-wide blood testing of children living

around the smelter. The average blood lead level was over 15 for children living within a

half-mile of the smelter. Several children had levels above 25, and one child had a level

of 34.

No further community-wide screening was performed until 1992. Dr. Rodgers,

again a pediatrician, toxicologist, and member of the CDC Advisory Committee on

Childhood Lead Poisoning, called this lack of screening entirely inappropriate. He

explained that the children around the smelter were a particularly high-risk population

that should have been screened frequently and intensely – even yearly. He noted that by

1985, it was known that children who lived next to lead smelters tended to have high

blood lead levels. CDC guidelines issued in 1985 classified children from nine months to

six years old who lived near a lead smelter as a high-priority group for lead screening,

and recommended yearly testing. Dan Vornberg, Doe Run’s director of environmental

affairs, acknowledged that he knew in January of 1985 that the CDC regarded children

living near lead smelters as a high-priority group for screening, but explained that the

CDC guidelines were directed to health agencies. According to Vornberg, Doe Run

officials did not view themselves as having an annual duty to run a blood lead program.

Moreover, with but “a few” above the 25 level of concern, Doe Run considered the

community a “normal community” by EPA guidelines and thus, in its view, screening

was not called for. They would recommend testing if anyone called in to the smelter to

talk about the issue, but Doe Run did not go out in the community, knock on doors, and

tell residents that they wanted to monitor blood levels.

42

When asked if Doe Run informed the people in the first half mile that the average

blood lead level in the area was above the level of concern, Mr. Vornberg stated that they

“put that in a paper.” He could not say, however, if the people that lived across the street

read that published scientific paper. And Doe Run held no public meetings at the time.

When asked how the Halbrooks, who in 1986 moved virtually across the street from the

smelter, were supposed to know about a published study, Vornberg replied: “Well, the

community was very aware of this issue. You’d think you’d be talking to neighbors,

talking to school officials, their alderman.”

“We weren’t set up at that time,” Vornberg stated, as another reason why Doe

Run did not perform further blood monitoring between 1985 and 1992. Yet, in 1986

alone, Doe Run regularly screened about 400 employees at the smelter. Doe Run had

equipment onsite and employed a phlebotomist full-time to draw blood. Mr. Vornberg

ultimately acknowledged that Doe Run had the ability to do the screening. He also

acknowledged that Doe Run got a good response when the company performed the

community-wide screenings in 1984 and 1992, due to a team of people knocking on

doors and taking the blood samples in the residents’ homes. But, he said, he never

thought about sending out Doe Run’s full-time phlebotomist to do the same thing each

year.

Partnership Actions:

What did they do? What did they fail to do?

We come now, to the heart of this case. What was Doe Run’s responsibility to the

children of Herculaneum? And knowing the extent of contamination and the effects of

lead on children, what did the Doe Run partnership do and what did they fail to do?

43

Professor James Fisher, a marketing and business ethics professor, opined that a

company such as Doe Run has a responsibility, in dealing with their neighbors and the

general public, “to do no harm, to communicate honestly, and even openly, and to not use

[their] knowledge to disadvantage the public….” Doe Run, itself, in 1993, represented to

the community that “[a] company has an obligation to be a good neighbor….” and that

the “health of every member of the community is one of our major priorities.” According

to the children, however, Doe Run was anything but a good neighbor. They contend the

partnership’s efforts were insufficient, and that the partnership withheld information,

even to the point of deceit, all to protect and enhance their bottom line. The partnership

knew substantial contamination existed in the community. They knew they were not in

compliance with federal standards and that they were continuing to contaminate the

community. They knew the harm that lead posed to children. Yet the partnership

continually reassured the parents of Herculaneum that they had nothing to worry about –

their children were safe. In sum, the partnership contaminated, concealed, delayed, and

deceived.

Fence-line Monitor

We return to the fence-line monitor. Not only did the partnership oppose

placement of an official fence-line monitor, and not only did the partnership know well

that the levels recorded at their private fence-line monitor were exceedingly high and

“unacceptable,” but the partnership kept quiet about the existence of that monitor.

Indeed, Matthew Heilig’s mother testified she had no idea of the monitor right in front of

her home registering a high level of lead. The partnership also kept mum about the levels

recorded at their monitor. They did not share those levels with either the community or

44

regulatory authorities. Dan Vornberg, Doe Run’s director of environmental affairs,

admitted that he never shared the levels at the environmental building with anyone. In

his words, he did not report the levels to the EPA because the agency “didn’t ask for

them.” Instead, the levels were kept in-house. Robert Schreiber, from the DNR,

confirmed that he was never shown the 1979 results showing a ninety-day average of

32.3. Had he known of the results, which he described as “abnormally high,” he would

have alerted the Missouri Department of Health and the EPA.

Furthermore, the partnership publicized demonstrably false information. In a

report released to the public in March of 1990, purporting to report on the air quality and

emissions in the smelter area for the years 1988 and 1989, Doe Run declared that an 8.59

quarterly average in 1988 was an “abnormally” high reading and was the “highest level in

a decade.” Doe Run made this statement despite the 32.3 reading in 1979.

“Absolutely outrageous.” That is how public-health expert David Rosner

described attempts to hide information from the community that had been contaminated

by the smelter’s pollutants. Jim Tarr, an expert in air-pollution control, similarly opined

that the data “absolutely, positively” should have been shared with the government, and

that it was not appropriate to stand silent. Both experts agreed that hiding the truth

distorted the community’s and the regulatory agencies’ appreciation of the danger.

Withholding information limited the ability of the people in the community to make

reasonable informed decisions in order to shield their children from the contaminated air.

Withholding information and refusing an official fence-line monitor also skewed the very

results that formed the basis of the implementation plan. Herculaneum’s implementation

plan did not address the truth of the matter “by any stretch of the imagination.” The state

45

of Missouri and the EPA simply did not realize the degree of the pollution. 31 Those in

public health depend on accurate, fair, and honest data. By not knowing the truth, the

State operated under an “illusion” and could not adequately address the danger and

protect the community. In sum, the partnership hid critical information about what was

being emitted from the smelter, putting the children further at risk.

Slag Pile & Other Smelter Equipment

The slag pile on site at the Herculaneum smelter was quite large – about twenty

feet high and covering about twenty acres. The slag material itself contained a

percentage of lead that had not been refined. Lead dust also accumulated on the slag pile,

as well as other open storage piles around the plant. James Lanzafame, an environmental

officer for Doe Run, acknowledged that they did not need a computer model to tell them

that dust would blow off the piles. Yet, the partnership did not purchase a portable

sprayer, to spray down the piles with water, until 1992, when the partnership authorized

$2,820 for the purchase. The partnership did not purchase a sprayer prior to this time

because they were addressing other “bigger” sources first.

Children from town long played and rode their bikes on the slag pile. The smelter

placed a small, low fence around the pile in the early 1980s, to try to signal that the pile

was a hazardous-waste area. Dan Vornberg noted that they posted signs and “tried to get

the message out” that the community should not play on the pile. Vornberg, Doe Run’s

director of environmental affairs, admitted that this was not a perfect system, and

31

For instance, in developing the implementation plan for Herculaneum in the early 1980s, the State

believed the highest ambient air value was 2.28, when the private fence-line monitor instead showed a level

of 32.

46

explained that they relied on parents to inform and watch their children. A chain-link

fence topped with barbed wire did not enclose the pile until after the partnership period.

In the early 1990s, Vornberg estimated that it would cost Doe Run 2 to 5 million

dollars to cover the slag pile. The partnership never covered the pile. Vornberg

explained, “At the time there was no requirement to close it.”

As noted earlier, lead concentrate arrived at the smelter by truck and by railcar.

The trucks kicked up dust as they traveled through the neighborhood streets. When asked

by a resident in 1990 why Doe Run did not switch shipment of all incoming lead

concentrate to rail, the company responded that if they shipped all concentrates by rail,

the rail rates would rise to the point of putting the smelter out of business. In 1991,

Vornberg proposed bringing in all lead concentrate via rail, rather than shipping some via

truck. He noted that trucks delivered thirty percent of the concentrate and that those

trucks generated dust. Vornberg presented his proposal to the president of Fluor and

other partnership officials. The record does not show that Doe Run ever changed

delivery methods.

In December of 1993, the partnership authorized money for an enclosed

conveyor-belt system to replace the old, existing, open conveyor-belt system. An

enclosed system would eliminate a major source of dust within the plant, and

correspondingly, significantly lower fugitive emissions and lead levels at the fence-line

air monitors. Richard Coleman, a chemical engineer and consultant for smelters,

explained that an enclosed system existed as early as 1976, and therefore the partnership

could have replaced the conveyor-belt system much earlier than 1993.

47

“Community Outreach”

Over the years, the partnership engaged in a number of “community outreach”

programs. The children presented evidence showing that Doe Run was less than

forthcoming in its outreach. Doe Run allayed concerns, downplayed the smelter’s

contribution as a source of lead, and consistently and repeatedly assured the community

that all was well.

Shortly after formation of the partnership, in 1987 and 1988, Doe Run officials

began community walks and distributed two pamphlets, entitled “My Book about Staying

Safe Around Lead” and “What Everyone Should Know About Lead Poisoning.” These

pamphlets described lead poisoning, its signs and symptoms, the sources of lead,

screening programs and preventative measures to take – such as washing one’s hands, not

putting things in one’s mouth, and eating healthy foods. Officials went door-to-door,

handed out this literature, and asked residents if they had any concerns. Officials did not,

however, tell them of the past and present dangers to their children of grave and

irreversible injuries.

In July of 1989, at the time when Doe Run had received a notice of violation from

the DNR for violating the national air quality standard, Doe Run sent a letter to their

employees who had children, in response to concerns raised regarding air lead levels in

Herculaneum. In that letter Doe Run downplayed the concerns, stating simply that the

“standards are set very conservatively ….”

In 1990, prior to conducting the second soil study, Doe Run held an informational

meeting to inform residents of the upcoming study. To announce the meeting, Doe Run

distributed a letter to residents, in which Doe Run expressly stated that they were

48

proposing the study, even though their information “indicates that there is no significant

health problem among residents living near the smelter.”

On a display chart for the meeting, Doe Run listed reasons for the meeting, three

of which were:

TO LET YOU KNOW the current status of the area’s lead health, which is

favorable.

TO LET YOU KNOW THAT NO SERIOUS HEALTH THREAT has

been identified for people living near the smelter.

TO DETERMINE THE BEST AND SAFEST way to ensure the

continuing good health and well-being of every Herculaneum resident.

On another chart, Doe Run listed eight sources of lead, listing “lead smelters” last, after

such sources as “improperly fired ceramics” and “antique pewter.” On yet another chart,

Doe Run listed the ways in which lead entered the body, listing “breathing dust and

fumes produced by lead smelters” last, after such items as “folk medicines,” “cosmetics,”

and “breathing dust and fumes produced when working on leaded stained glass.” Doe

Run created another chart, listing the following measures residents could take to reduce

their exposure to lead: “wash hands before eating,” “vacuum carpets and floors

frequently,” “check plumbing for lead piping,” “wear a mask when scraping leaded

paint,” “avoid using leaded ceramic pans or dishes when cooking, storing, and serving

food,” and lastly, “keep clothes clean.”

This last chart exemplifies the consistent message from Doe Run – that residents

could lower their exposure to lead if they would just clean their homes and watch their

kids. Another example of Doe Run’s misleading messages is when the partnership

provided vacuum cleaners for the residents, free of charge. Doe Run officials simply told

49

Nora Murray that “this will help keep your house clean.” 32 Ms. Murray just thought Doe

Run was being nice.

Doe Run officials continued their door-to-door community walks in 1991. During

these walks, Doe Run officials did not tell residents that exposure to lead lowered IQs.

Officials did not tell residents that the brain effects were irreversible. Officials did not

tell pregnant mothers that pregnancy released lead from bone. Officials did not tell

residents that lead could impair brain function in children. When asked why Doe Run did

not inform residents about the risks, Gary Walker, the partnership’s environmental officer

and industrial hygienist, answered only that “we told them about what we were doing to

try to make things better in the community.” Doe Run again emphasized that parents

could minimize exposure to lead by cleaning their homes. Walker insisted that parents

needed to take responsibility and spend some amount of time cleaning their homes. He

declared the lead “may or may not be related to the smelter,” and that there were

“multiple issues” as to why lead was present in the community. He further maintained

that as of 1992 there were “only a few people” at the CDC levels of concern, when the

evidence showed otherwise. He knew soil levels were high, but persisted in the notion

that lead-based paint contributed to the elevated lead levels. He also maintained that the

residents knew of the lead in the community because the smelter had been there for over

a hundred years. This “had to know” position was yet another message consistently

advanced by Doe Run – even to the point of insinuating it was the parents’ fault for

choosing to live close to the smelter.

32

Nora Murray, a cousin of Brian and Tiffany Bolden, also lived in Herculaneum.

50

Soil-Abatement Program

In 1991, a year after completing the second soil study, Doe Run instituted a soil-

abatement program, in which they dug up and then replaced leaded soil. Doe Run

budgeted $480,000 for the program in 1991. Out of nearly two hundred homes in the

nearby community, Doe Run in 1991 replaced soil in only six yards, a vacant lot, and a

one-acre field. They did not start at the homes with the highest level of lead in the soil.

When asked why only six yards, Gary Walker explained that they, Doe Run, wanted to

do a “pilot project” to see whether they could do a “decent” job. Paul Allen, a consultant

for Fluor and member of the partnership committee, commented on the newly-replaced

yards when reporting to Fluor’s president in October of 1991, expressly remarking that

the program was “costing only a nominal amount.”

The following year, in 1992, Doe Run again replaced soil in just six residential

yards. When asked why, after 1991, Doe Run did not buy all the equipment they

possibly could, and proceed to clean the entire area in 1992, Mr. Walker explained that

they were using equipment – high lifts, bobcats and the like – that took a lot of time and

effort to complete the job. He also blamed the rain, wash-outs, “and other things.” He

further explained that Doe Run had hired consultants and contractors who were landscape

people to do the soil replacement, so “there’s a learning process in getting that done.” In

sum, he explained that Doe Run’s progress in replacing soil was limited by the type of

equipment they were using and their knowledge about how to get started. “You’ve got to

walk before you can run,” he protested. Dan Vornberg, the partnership’s director of

environmental affairs, gave a similar explanation. He noted that the soil-replacement

program was a pilot program to demonstrate the feasibility of the program. He further

51

noted that no one else in the state had done anything, that the State was not interested,

and that federal officials were not pressuring them. He also explained that in Doe Run’s

view, lead in the soil only minimally raised the blood level of a child, and so soil

replacement “wasn’t the most important thing that could be done.” Vornberg was also of

the opinion that most of the houses had a soil lead level below 2000. The results, noted

before, belie this opinion.

Doe Run acknowledged that the process of removing the contaminated soil kicked

up a lot of dust. But, Doe Run did not move families out of their homes when cleaning

up the contaminated yards. Doe Run did not perceive any risk to the residents because

they kept the residents away from the heavy equipment. Doe Run also did not offer to

clean the residents’ homes after completing the remediation projects. And although Doe

Run monitored the blood levels of their own workers during the soil cleanups, they did

not monitor the levels of the resident children. Mr. Walker characterized the workers’

exposure as “low.” But testing on those workers revealed an average blood level of 15.

Dr. O’Connor, the children’s expert in environmental chemistry and chemical

safety, opined that the soil-remediation project was not effective. In his view, it simply

was not feasible to clean up the entire area. Dr. O’Connor explained that Doe Run may

have replaced soil in a particular yard, but lead dust was still in the surrounding

environment – be it in the street, the air, or an adjoining yard – and the soil replacement

did not protect a yard from that dust. Doe Run did not retest yards after replacement to

see if and how much lead had reaccumulated in the yards. 33 And even though Doe Run

33

As noted in our recent decision, Doyle v. Fluor Corp, 400 S.W.3d 316 (Mo. App. E.D. 2013), soil

remediation accelerated beginning in 2001, after the partnership period, pursuant to a consent decree

between the smelter and the EPA. By 2007, 54 properties had been remediated. To date, nearly all

properties in Herculaneum have been remediated except for a few at the outskirts of town.

52

made a minimal effort at remediation, they did not explain the danger of the lead to the

homeowners.

1992 Blood Study

In April of 1992, in conjunction with a national study, Doe Run conducted

another blood study of residents. Doe Run planned to test those children, aged six

months to six years, who lived within a one-and-a-half mile radius of the smelter.

However, several parents testified that they did not know, or were never contacted about

the test.

Testing revealed an average blood lead level of 11.6, above the CDC level of

concern. This average was an overall average – based on children within the one-and-a-

half mile radius of the smelter. Of those children living closest to the smelter, within the

first half mile, ninety-one percent – thirty of thirty-three children – had lead levels above

10. Of these thirty children, ten children had levels between 10 and 15, fifteen children

had levels between 15 and 20, and five children had levels over 20. 34 The average level

for those children living within a half mile of the smelter was 15.6.

Doe Run issued a press release after the study, emphasizing that levels had

decreased since 1975 and 1984. They did not point out that nearly every child tested in

the first half mile of the smelter was above the CDC level of concern of 10.

Dr. Rodgers, the pediatrician who served on the CDC Advisory Committee on

Childhood Lead Poisoning, concluded that these levels should have triggered

community-wide efforts. Doe Run contended that they followed the CDC guidelines, and

that they worked to ensure that those with blood levels above 10 were told they needed to

34

Those levels were 21, 23.1, 27, 28, and 28.

53

get another blood test. Several parents, however, were never informed of the test results.

Mrs. Shanks, for instance, never received a letter and only later learned that her daughters

had tested at 10.2 and 10.8. Had she known that over 90% of the children living near the

smelter, including her daughters, had lead poisoning, she would have moved out and

sought treatment. Others, like the Alexanders, received results, but no one from Doe Run

ever contacted them about those results. The letter, as sent, gave them no reason to be

concerned. Their son Preston was tested twice in 1992, two months apart. His levels

were 16.9 and 16.5. Dr. Rodgers testified that when someone tests above 15 twice within

the same year, the CDC would say that you need to find the source of the lead and then

get the person away from that source. And certainly the person needs to be followed

closely. As a pediatrician, Dr. Rodgers would have told the Alexanders that they needed

to get Preston away from the source of the lead.

REACT Program

After this blood study, in the late summer of 1992, Doe Run hired a company by

the name of REACT Environmental Engineers to perform a variety of functions,

including conducting an environmental survey of households with children having

elevated blood lead levels. Doe Run and REACT asked residents to complete a

household questionnaire. Curiously, a number of questions had no connection to lead

exposure. 35 But in addressing the activities of household members, the questionnaire

began by asking about every other type of potential lead exposure other than the

35

For instance, the survey asked such questions as whether household members smoked or used tobacco

products, and whether household members had any pets in house. The survey also asked the highest level

of education for the head of household, the gross household income, and the race of the children. The

survey also asked whether the resident owned or rented the house.

54

smelter. 36 And in addressing occupations, the questionnaire asked no questions

specifically about the smelter, such as whether any member of the household worked

there.

Preston Alexander’s parents participated in the REACT survey. Officials

collected paint chips and dust from the home, as well as soil and water samples. Testing

showed that the Alexanders had no problems with lead in their water supply; the lead

present was well within the acceptable range. The Alexanders had no lead paint inside

their house and just a minimal, acceptable, amount of lead paint on their outside steps.

The house dust samples, however, showed a “relatively high” lead concentration of 6030

for the vacuum sample and a “moderate” lead concentration of 1270 for the wipe sample.

And soil testing revealed “moderately high to high” lead concentrations of 1720 and

3620.

Based on these findings, the letter reporting the test results set forth a litany of

recommendations to reduce their child’s exposure to lead in the home, including: making

sure peeling paint was not accessible to the child, either inside or outside of the house;

conducting an extensive one-time cleaning of the entire house; wet-mopping and cleaning

windowsills, furniture, and baseboards twice a week; vacuuming carpets and rugs twice a

week; washing toys daily; washing their child’s hands and face frequently, especially

before he eats and after playing in the soil; making sure their child was not ingesting

paint chips or soil; making sure their child ate regular meals; and making sure parental

36

For instance, the questionnaire first asked whether anyone painted pictures with artists’ paints, painted

furniture or the inside/outside of the home, worked with stained glass, cast lead into fishing sinkers,

soldered electronics or pipes, repaired auto radiators or worked on auto bodies, worked in a sewage

treatment plant, made any pottery, performed any welding, cleaned a firearm, or visited an indoor firearm

target range. The survey did not ask about smelting lead until the seventeenth of twenty-seven questions

regarding household activities.

55

occupations or hobbies did not expose their child to lead. But nowhere does the letter

even allude to the lead smelter. And nowhere does the letter suggest that parents need to

move their children out of Herculaneum. The letter never mentions that the lead found

could be a poison to the Alexanders’ children. No one ever explained to the Alexanders

just how “relatively high” the dust sample of 6030 was. And no one ever explained the

meaning of the soil numbers or the meaning of “moderately high.” Furthermore, despite

stating the purpose of the survey was to determine the most likely sources of exposure,

the letter never even mentions the most likely source of the lead in their home. In Mrs.

Alexander’s words, Doe Run was conducting a lot of surveys and they were being asked

a lot of questions, but “we had no answers.”

The Alexanders interpreted the letter as telling them they were not keeping a

clean home and, if they did, everything would be alright. After receiving the letter, Mrs.

Alexander, a professional housekeeper, tore apart her home and cleaned constantly. Even

though she believed herself a good housekeeper, she allowed Doe Run to conduct an

extensive one-time cleaning of her home. Instead of a “professional” cleaning service, as

offered in the letter, Doe Run simply sent employees from the smelter – coworkers of Mr.

Alexander – to clean the home. And those employees used dirty, dusty equipment from

the smelter. The workers took equipment that was used in the smelter’s change house

and brought it straight across the street to clean the Alexanders’ home.

1993 “Community Interaction” Program

Doe Run officials launched a new “community interaction” program in 1993.

Doe Run was under mounting regulatory pressure and believed it was losing community

standing and empathy. Doe Run officials set various goals for their program, including:

56

having 95% (but notably, not all) of children in the smelter umbrella with a blood lead

level less than 10 (the new CDC level of concern); eliminating negligence liability;

booking liability for the half-mile radius at appraised value of property; “optimizing” Doe

Run’s public-relations position; reducing the possibility of a negative media campaign;

and managing “the impact on Doe Run’s potential to operate and consequently the value

of the company and its potential marketability to the public or another company.”

Doe Run hired a new public-relations firm. This new firm developed a

communications strategy for Doe Run that included messages to convey to the

community, and then a multi-faceted approach for interacting with the community to

disseminate these messages. The firm identified several key audiences, such as residents

nearest the smelter, parents of young children, and residents new to the area, and then

matched messages to these audiences. Slightly tailored for each audience, those

messages all struck a consistent and familiar refrain: Doe Run is a credible source of

information; Doe Run is a responsible company that continues to improve its

environmental performance; the community is safe; Doe Run’s operation does not

adversely affect either the health of children or property values; and lastly, most exposure

is historical and can be avoided by careful attention during routine house-cleaning. In

handwritten notes from a meeting with this new public-relations firm, Dan Vornberg

ominously observed, “Perception is reality.”

As part of this new “community interaction” program, the partnership produced

and distributed a video entitled “Living with Lead.” In general terms, the video conveyed

that exposure to too much lead could cause health problems. Remarkably, the video

showed a child playing in a yard, and made it appear that it was okay for children to be

57

playing in lead-contaminated yards. Again Doe Run deflected attention away from the

smelter. A good portion of the video dealt with lead-based paint, and even described

precautionary measures to be taken when remodeling homes with lead-based paint. The

word “smelter” was used only twice in the entire video. The video stated that many or all

women were below the CDC level of concern, but never mentioned the children of

Herculaneum. The video never alluded to the 1992 blood test results. Instead, the video

stated that many children in the United States were above the CDC level of concern, and

that “most don’t live near lead smelters.” When asked about this at trial, Mr. Walker,

Doe Run’s environmental officer, stated the video statement was correct and, in defense,

declared: “but everybody in Herculaneum in the half mile absolutely knows they live

near a lead smelter.”

The partnership also published a series of newsletters called “Neighborhood

Notes.” Portrayed by Doe Run as a way of informing residents about community events,

Doe Run’s environmental progress, and ways to minimize lead exposure, the children

contended these newsletters were likewise misleading.

Over the course of four newsletters, Doe Run included a number of articles

portraying the company as a good neighbor. 37 They publicized that they were running

experiments and soil tests at eleven homes to see how the soil could be improved, and to

learn how to treat each yard to correct any problems. In yet another article, Doe Run

extolled the environmental progress at the smelter, noting that newly-installed equipment

would reduce air emissions. The focus of the measures and article, however, was sulfur

dioxide gas, not lead emissions. In lauding their environmental progress, Doe Run never

37

For instance, in one article, Doe Run boasted that their employees had filled sandbags during the Great

Flood of 1993. In another full-page article, they touted their whistle alarm, which sounded for fires and

tornados, as a “real benefit” to the community.

58

mentioned that they had not met the air-quality standard and did not think they ever

would.

The articles often minimized the extent of contamination, as well as the dangers

of lead. In announcing that company representatives would be doing “walk abouts” and

distributing coupons good for one free rental of a rug shampoo machine, Doe Run

downplayed the danger: “It’s our way of saying thank you for meeting with us and a way

for you to get dust out of your home. Some of that dust might contain a small amount of

lead.” In an article discussing their soil-replacement program, Doe Run stated that

“some” of the homes nearest the smelter had relatively high levels of lead in the soil.

Professor Fisher, the marketing professor and a communications expert, believed that this

statement misled residents regarding the dangers they confronted. A lot of homes had

high lead levels, not just “some.” Professor Fisher was also critical of the way Doe Run

informed the community about the availability and importance of blood testing. Instead

of conveying a sense of urgency, Doe Run had written the newsletter in a “light and

breezy tone,” with an “alarming lack of candor.” Professor Fisher further opined that,

given Doe Run’s knowledge that children within a half-mile of the smelter had very high

levels of lead, this casual tone was totally inappropriate when the very grim numbers

confirmed a healthcare emergency. Indeed, parents testified that the newsletters gave

them no cause for concern, but instead conveyed that Doe Run was a good neighbor, and

that there was nothing to worry about.

Doe Run’s last newsletter, from February of 1994, is especially telling. Doe Run

included but one article in this newsletter, an article entitled “An Expert Talks About

Families and Lead,” in which Dr. Eugene Shippen, a physician and consultant for lead

59

companies about the health effects of lead exposure, gave his thoughts on lead. After

proclaiming “there is positive news about the health effects of lead exposure,” the article

noted that yesterday’s children were exposed to dramatically higher levels of lead than

today’s youngsters, because many sources of lead – gas, water, food cans, and toothpaste

tubes – had been eliminated. Despite the fact that Doe Run was not meeting the air-

quality standard for lead, it ran an article proclaiming “today’s cities have lead levels in

the air well below what was measured in the past.” The article goes on to declare that

much of what is known about health problems caused by lead emissions comes from

studies done before environmental controls were put into place, and that today’s smelters

could not be compared to the way operations were run sixty years, or even ten years ago.

The article then counsels that “the best defense parents have to prevent young children

from becoming exposed to lead is close observation,” and that “one of the highest risk

factors for young children is exposure to old lead paint.” Little is said of smelters, other

than stating that “even with a point source such as a smelter, a community’s lead

exposure is below what used to be normal in a major city when lead was used in products

families were exposed to.” The overall tenor of this article – that conditions are so much

better than what they used to be – reflected the strategy of the lead industry, and sounded

the recurring refrain of Doe Run.

As advertised, Doe Run indeed revived their door-to-door walks as a part of their

new “community interaction” program, as a way to disseminate their messages. The

children argued that Doe Run officials, in their walk-abouts and in the informational

packets they distributed during those walks, were every bit as misleading as in the video

and the Neighborhood Notes. The children heard the same messages. Doe Run touted

60

their “many projects” designed to reduce exposure to lead, including replacing soil

around “a number” of homes. Doe Run is a responsible company. In offering coupons

for a free rental of a rug shampoo machine, Doe Run told residents that “[k]eeping lead

dust out of your house is one of the best ways to reduce your family’s exposure to lead.”

Just clean. In responding to the question “How big a problem is exposure to lead?’, Doe

Run did not mention the children of Herculaneum, but instead spoke in general terms,

stating that “only about 200 [children] live around the 25 lead smelters in the United

States.” The community is safe. In responding to the question “where does the lead

come from?”, Doe Run answered that lead “comes from many places,” and then

mentioned lead smelters as a source of lead after mentioning old water pipes and food

cans. 38 Doe Run’s operation does not adversely affect the community. When asked if

their answer was designed to make people think that the smelter was a minor source,

Gary Walker, Doe Run’s environmental officer, simply answered: “anybody that lives in

Herculaneum knows the smelter is there, and they had received, by this time, information

about the lead in soil. They were seeing people removing … soil from yards with lead.

They knew that this was one of the sources….” They knew. Doe Run did not mention

the current blood levels present in the Herculaneum children. Instead, they boasted that

levels were “43 percent lower” than what they were in 1975. When asked the point of

comparing current lead levels with levels from 1975, Mr. Walker responded: “You want

to move forward…You want to tell people that you’re doing better.” Perception is

reality.

38

In full, Doe Run’s prepared answer stated:

Lead comes from many places. In the past, lead was in gasoline and paint, which can

chip and be eaten by small children. Old water pipes were soldered with lead, which can

find its way into drinking water. Cans used to store food might have lead seams and that

lead can get into food. Lead smelters also are a source of some lead in the air and in soil.

61

Buyouts

Numerous experts testified that Doe Run should have bought out the community.

They did not.

Richard Coleman, the chemical engineer and smelter consultant, stated that

engineering controls alone, such as replacing and installing new equipment, would not

solve Doe Run’s problem. Those control measures alone could not achieve the 1.5 air

standard. According to Mr. Coleman, Doe Run had other avenues available to meet the

national standard. For one, Doe Run could dramatically reduce production. Mr.

Coleman noted that this meant Doe Run would likely have to shut down the plant. Doe

Run could also expand out their property’s perimeter to a point where they complied. To

do that, Doe Run had to buy out all the surrounding houses. In Mr. Coleman’s opinion,

Doe Run should have done so.

Dr. O’Connor, the chemist with expertise in environmental chemistry and

chemical safety, also concluded that Doe Run needed to move the children to prevent

their continuing exposure to the high levels of lead. In his view, the residents were

endangered and cleanup was not feasible. Dr. O’Connor opined that Doe Run should

have offered buyouts at a very early date, as soon as Doe Run knew the area was

contaminated and that they were not going to stop contaminating the town.

Professor Fisher, the marketing and business ethics professor, opined that if Doe

Run had operated in the community’s best interest, they would have moved the residents

rather than surveying them for their attitudes, as they had done during their walk-abouts.

According to Dr. Rosner, the public-health expert, a buyout was the most logical

course of action, given the high levels of lead in the children. In his opinion, Doe Run

62

should have bought out the community in 1989, when Paul Allen, a partnership

committee member, raised the idea of a buyout in response to the “very complex and

serious environmental problem” that existed in Herculaneum. If not then, Rosner opined,

then Doe Run unquestionably should have bought out the homes when they learned in

1992 that nearly every child tested in the first half mile of the smelter was above the CDC

level of concern of 10. Doe Run knew those close to the smelter were subject to high

levels of fugitive emissions. In Dr. Rosner’s opinion, all Doe Run had to do to reduce

that exposure was move the residents. And Doe Run could have met the national ambient

air standard if they would just have moved the fence-line to a new plant boundary that

was further away. Doe Run could have done just that, but decided not to.

Dr. Rodgers, the pediatrician and toxicologist, also testified that Doe Run should

have moved the children away from the smelter. Nathan Davis was a perfect example.

Nathan underwent four blood tests in 1992. His levels were all quite high, at 19, 20.5,

16, and 20. Dr. Rodgers explained that if someone with these results had come to him as

the head of a poison center, he would have told them to identify the source of the child’s

lead and remove the child from the source. In Nathan’s case, he would have told the

Davis family to get away from Herculaneum.

A primary goal of poison-prevention activities is removal – either remove the

source or, if that is not possible, then remove the child from the source. The CDC

published a document in 1991, entitled “CDC Preventing Lead Poisoning in Young

Children, A Statement by the Centers for Disease Control.” The CDC emphasized

throughout the document that eliminating childhood lead poisoning required preventing

lead poisoning altogether. “For the child who is lead poisoned, however, efficient and

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effective interventions are needed as quickly as possible.” “Abatement means making

the source of lead inaccessible to the child.” “Complete abatement of the lead hazards in

the child’s environment is the most effective and only certain way to prevent further

damage.” The CDC also recommended that environmental interventions be directed at

primary prevention of lead poisoning in communities with a large number or percentage

of children with blood lead levels greater than or equal to 10.” The CDC further

emphasized that its focus was on the source: “The purpose of community-level

intervention is to identify and respond to sources, not cases, of lead poisoning.”

“Whatever mechanisms are used, the goal of hazard abatement must be to systematically

eradicate the lead hazards in the community. Such a program will protect not only lead-

poisoned children but all children – and thus safeguard the community’s future.”

When asked if he knew a way of abatement – making lead inaccessible to people

within a half-mile of smelter – other than offering to buy out properties and moving

families away from the smelter, Gary Walker responded, “The health department did not

say that that was needed or necessary, that we needed to move those people ….”

Unquestionably, Doe Run could afford a buyout. Dan Vornberg, Doe Run’s

director of environmental affairs, admitted that Doe Run had several hundred million

dollars in sales and very large profits, and that they “had a lot of cash flow.” In 1988,

Doe Run completely and independently financed a secondary-lead project out of the

partnership’s cash flow. Financial reports for fiscal year 1988 show Doe Run’s net

income at 60 to 61 million dollars. 39 In 1989, Doe Run made 13.1 million dollars more

than the partnership had projected. Professor Henry Ordower, a professor of law at St.

39

Net income, of course, is total income revenues less expenses – in other words, the amount of money left

over after a company has paid all its expenses.

64

Louis University School of Law, who teaches courses on business associations and

corporate finance, remarked that this extra 13.1 million dollars was more than sufficient

to buy out the town. In formulating its 1990 budget, Doe Run reduced operating costs

and capital expenditures by a total of six million dollars. According to Professor

Ordower, the partnership could have used this freed-up money to buy out the town. But

Doe Run budgeted just $265,000 in its 1990 budget for buyouts. Doe Run again cut its

budget in 1991, reducing operating costs by thirty million dollars. By September of

1991, Fluor had more cash on hand than it could effectively invest. In 1993, Gary

Walker, the partnership’s environmental officer and industrial hygienist, calculated a cost

of $9,238,299 to buy out all the houses in Herculaneum.

Substantial precedent existed for buying communities out. Love Canal, in New

York, was bought out in 1978; Mountain View, Arizona, in the 1970s; Revilletown,

Louisiana, in 1987-1989; Morrisonville, Louisiana, in 1989-1990; and closer to home,

Times Beach, Missouri, was bought out in 1983. Granted, these classic examples of

buyouts relate to the chemical industry, but towns around lead smelters had also been

bought out. Smeltertown in El Paso, Texas, home of the ASARCO smelter, was bought

out in 1972; and Kellogg, Idaho, home of the Bunker Hill smelting facility, was bought

out in 1983.

Doe Run officials considered buyouts as early as 1987. In July of that year,

Jeffrey Zelms, president of Doe Run, requested partnership approval to purchase certain

properties surrounding the smelter. In making his request, Mr. Zelms noted reasonable

grounds existed to believe that the EPA would promulgate regulations requiring smelters

to create a belt around the plants for environmental reasons. Mr. Zelms wanted to get a

65

jump on those regulations by creating such a belt a little at a time. Mr. Zelms requested

just over one hundred thousand dollars for the project.

The partnership committee apparently approved the request, since Doe Run began

purchasing properties shortly thereafter. However, once purchased, the partnership

turned around and rented out the homes. Notably, the lease contracts contained a clause

stipulating that no children under the age of eighteen could live in the home. Doe Run

did not rent to families with children under eighteen because it was a “risk management”

issue. Yet Doe Run never told the neighbors, or the town in general, that they were not

renting homes to families with children because of the presence and danger of lead. Dan

Vornberg explained: “We didn’t have the right of eminent domain. We didn’t have the

right to destroy the value of their property by telling them it wasn’t safe to live there.

That was their determination.”

The issue of buyouts next arose in 1989, when Paul Allen, newly appointed to the

partnership committee, reported on his recent trip to Herculaneum. In a letter to Les

McCraw, fellow committee member and CEO of Fluor, Mr. Allen cited the “very

complex and serious environmental problem” that existed in Herculaneum, and cautioned

that an all-out buyout would likely result in a massive class-action suit. He wrote:

We discussed the idea of buying up all the property in Herculaneum where

homes can be purchased for an average of only $38,000. However, an all-

out program to do this, to relocate families, raze the buildings and return

the land to its pristine state, would very likely precipitate a massive class

action suit.

Mr. Allen again worried about the possibility of a class-action suit in a second letter to

Mr. McCraw:

All this discussion gave rise to the question as to whether the 9.1 million

dollars for … sinter plant revisions might be better spent on buying all the

66

properties in Herky, locating the families elsewhere and returning the land

to its pristine state. …

From the discussion on November 3rd though, it appears that the idea of

buying Herculaneum property on an all out rush basis is much too

simplistic. Implementation of such an idea would almost certainly invite a

major class action suit.

Indeed, Doe Run decided to not buy out the entire community. Instead, the

partnership decided to purchase homes gradually, budgeting for only a certain number of

home purchases per year. Moreover, Doe Run only purchased homes one house out from

the smelter property line. And Doe Run’s purchase of properties was unrelated to the

presence of children with high blood lead levels, even though Dan Vornberg in 1987 said

that a buyout was one of the things to be done in response to high blood lead levels.

Furthermore, Doe Run never solicited people in the proposed buyout zone to purchase

their property. Instead, Doe Run waited until the owner placed their house on the market.

Doe Run would then appraise the home, and if the appraisal met the asking price, they

would then purchase the home.

In the early 1990s Doe Run still only had a budgeted amount of money each year

for buyouts. And Doe Run still did not specifically purchase property based on the safety

of children. Rather, if a resident approached them about a potential buyout, Doe Run

considered the proximity of the house to the smelter and the available budget. If Doe

Run had expended their budgeted money for the year, Doe Run put people off and told

them to wait until the following year. Doe Run told parents in 1992 that the company

was getting out of buying houses because it was getting “too costly.”

Even as late as 1993, Doe Run still only purchased a small number of homes.

When asked why Doe Run did not ask people to move in 1992, when Doe Run knew of

the high level of lead in the soil, the high fugitive emissions, and the high blood lead

67

levels, Dan Vornberg, the partnership’s director of environmental affairs, explained only

that Doe Run was instituting a multi-tiered program of selected purchases, soil lead

education, plus a $20 million air lead reduction program. Furthermore, in Doe Run’s

view, the real-estate market was robust, and people could sell their house if they were not

in Doe Run’s buyout zone. Mr. Vornberg did not believe that residents were having

difficulty selling their properties. The children, however, presented evidence that

residents could not sell their homes because their property was contaminated. Mr.

Vornberg further excused Doe Run’s actions by explaining that Doe Run did not have the

right of eminent domain, so in their view, they could not go to people and offer to move

them away from the area. Although Doe Run continually argued that they “could not

force residents to sell their property,” numerous parents testified that if Doe Run had

offered, they would have sold in a heartbeat.

Doe Run declined to buy a home in October of 1993 despite compelling

circumstances. A resident had approached Doe Run about the possibility of Doe Run

buying her home. She was afraid her children were being poisoned by the lead. She

already had a dog die from lead poisoning, and the soil level at her home was 3525. She

herself was experiencing headaches, nausea, cramps, and diarrhea. She could not sell her

house. Doe Run offered blood testing, but told her they could not commit to purchasing

the house in the “midst of budgets.” They also said that an environmental review by an

outside party would help them decide if they had any responsibility with regards to her

symptoms. The Doe Run official, in memorializing the conversation, wrote that he

“attempted to deliver some of our key messages – following CDC guidelines, making

improvements, air lead coming down in community, trying to get more information out to

68

them.” The official also noted that the house was not in the present buyout zone. The

official also asked the resident if she knew the smelter was there when she bought the

home.

Even in the closing days of the partnership, Doe Run still had no interest in

buying homes. Moreover, Doe Run was still laying blame at the parents’ feet. The

Yateses’ experience is especially telling. Prior to the spring of 1994, the Yateses had no

concerns about life with their children in Herculaneum. They then learned that their

neighbor’s dog had died from lead intoxication. The Yateses had blood tests run on their

children. Isaiah’s level was 13. Upon learning this, Isaiah’s father immediately called

Doe Run and demanded a meeting with company officials. The Yateses met with several

officials, some of whom were lawyers, in a large conference room at the smelter. The

Yateses sat at one end of the long conference table, the Doe Run officials at the other.

The Yateses informed the officials that Isaiah had over the allowable limit of lead, and

they wanted to know what Doe Run was going to do about it. They asked if Doe Run

would be interested in purchasing their home. The officials made it clear to the Yateses

that Doe Run would not. “We’re not interested in buying your property,” they repeatedly

said. Even when the Yateses said they were just asking fair-market price, officials

responded: “Not interested.” Officials then told the Yateses that they needed to run their

air conditioner more. But the Yateses did not even have an air conditioner. To add insult

to injury, one of the officials then remarked that Isaiah’s level and exposure probably

came from the Yateses “not keeping [their] baseboards clean enough in the house,” and

that the Yateses “didn’t keep [their] house clean enough.” These remarks ended the

meeting.

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“Absolutely inappropriate” and “horrifying.” That is how the children’s experts

described Doe Run’s course of conduct. Richard Coleman, the chemical engineer and

smelter consultant, explained that Doe Run should have been forthcoming and honest

with the community, explained the hazards involved, and told residents that the company

wanted to buy their houses to avoid their exposure to lead. Jim Tarr, the expert in air-

pollution control, similarly testified that Doe Run should have first told the truth, both to

the community and to the regulatory agencies; and that secondly, Doe Run should have

taken definitive action to protect the children’s health, either by providing their families

an opportunity to live elsewhere or by shutting down the lead smelter. Professor Fisher

and Dr. Rosner both opined that it was absolutely inappropriate for Doe Run to condition

public health and a course of action on the possibility of lawsuits. Dr. Rosner explained:

the idea that you allow people to have their children in harm’s way while

you know there’s a problem and you tell them to have vacuum cleaners or

clean up their act or wash their hands or dust their house, when you know

that’s not the problem, is a horrifying, horrifying example of the misuse ...

of their power.

Dr. Rosner further testified that it was not appropriate to just buy properties when they

became available and without regard to the blood levels of the children. He was equally

critical of Doe Run renting the homes after they purchased them. Dr. Rosner explained

that the fact that Doe Run rented only to “no-children” families shows that Doe Run fully

appreciated that children living in those homes were at risk. They knew everything they

needed to know to get people out of the area. But they stood silent. Doe Run protected

themselves as owners of the leasehold, but did not protect the children next door.

In sum, a public-health emergency existed in Herculaneum. And according to Dr.

Rosner, the public-health expert, Doe Run acted inappropriately in failing to warn the

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community and in failing to move the residents out of harm’s way. The children of

Herculaneum faced a risk that was predictable, understandable, and preventable. The

children would have been at no risk if they had been moved away from the smelter. Doe

Run should not have just offered, but should have convinced the residents to move. But

Doe Run did not. Instead, Doe Run officials did everything in their power to keep the

residents in the dark. Doe Run could have and should have protected the children and

moved them away from the smelter. But they did not. Instead, Doe Run let the children

sit there amidst the dust. 40

Trial

After nearly six years of discovery and pre-trial proceedings, the children

proceeded to trial against three of the partners: Fluor, Massey, and DRIH. These three

entities were represented at trial by the same group of attorneys. 41 Over the course of

thirteen weeks during the spring and summer of 2011, the parties presented 52 witnesses,

and introduced over 1,400 exhibits. The trial, at times, was quite contentious. 42

Defendants presented a vigorous defense. In simple terms, as summed up by their

counsel in his closing argument, the defendants defended on grounds that it “wasn’t us,”

and that the children were not harmed but were all doing “quite well.” As to the business

and operational side of things, defense counsel insisted that the three defendants were not

involved in the operations of the smelter, but just had ownership. Fluor, Massey, and

DRIH did not smelt “one ounce of lead,” counsel protested. Counsel instead pointed the

40

Concurrent with remediation efforts that took place after the partnership period, the owners of the smelter

in 2002 agreed, in cooperation with the Missouri DNR, to offer to purchase all of the residential properties

within approximately three-eighths of a mile of the smelter. Doyle v. Fluor Corp, 400 S.W.3d 316 (Mo.

App. E.D. 2013).

41

These attorneys also jointly briefed and argued the defendants’ appeal.

42

We commend the trial judge on his constant and judicious professionalism.

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finger at Jeffrey Zelms, president of Doe Run, and at St. Joe, another partner from the

partnership period, but not a party at trial. 43 Counsel insisted that Zelms was the person

in charge and the one really running the company and the smelter. As far as the day-to-

day running of the smelter, “the buck stopped” with Mr. Zelms. Counsel alternatively

claimed that St. Joe ran the show, and argued that it was St. Joe who dominated Massey

and DRIH, not Fluor. He insisted that the children sued Fluor, as opposed to the

“operating company,” simply because Fluor was a “huge” company and because Fluor

owned entities that were partners. “Remember, we didn’t smelt it, we didn’t do any of

the stuff, it wasn’t our actions.” “We (Fluor) are being sued because of legalisms and

because of contracts.”

Defendants adamantly argued that they were not negligent. They acknowledged

they knew of the contamination in the area, but insisted their actions were reasonable,

when considered in context of the knowledge and standards of the time. Counsel

defended that the 1.5 national standard was difficult to meet, and that it was not easy to

bring an old smelter and all of its emissions into control, to bring the smelter into the new

age, but they tried. Counsel protested that no federal or state agency claimed that Fluor,

Massey, or DRIH had ever done anything wrong. To the contrary, defendants maintained

that they complied with the implementation plans and the law, and that they did many

positive things to control emissions and benefit the community. He noted that blood lead

levels in the community were declining. Counsel also pointed out that the partnership

spent millions of dollars on new equipment at the smelter, that they bought out homes,

offered free blood testing, distributed educational materials, and cleaned up yards, even

43

See Appendix C for details of the partnership. St. Joe was owned by Fluor, and was the parent

corporation of Massey.

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though the EPA had not ordered them to do so. Counsel even insinuated that they may

not have been responsible for all the lead in the soil. He noted that in years past, the city

used slag material on the roads, and argued that lead in some of the soils may have come

from residents themselves going to the slag pile and bringing it home. As to the buyouts,

counsel insisted that the decision was not made for economic reasons. He explained that

they did not buy out the entire town because Jeffrey Zelms never recommended a buyout.

He explained that Zelms, intimately familiar with the community, wanted to reduce

emissions and bring the smelter into compliance, and keep the community together. In

defendants’ opinion, “this was not a community that really wanted to disband.”

“All doing well.” Such were defense counsel’s words in describing the children.

In defendants’ view, the children were not harmed. Defendants claimed that the children

were successful, that they were gainfully employed, and that the ones still in school were

doing well, and that even though the children supposedly had ADHD and IQ losses, they

were doing as well or better than their parents. Defendants maintained that the majority

of the children – 13 of the 16 – did not have ADHD at all. They conceded that three of

the children had ADHD, but insisted that lead was not the cause. Counsel argued that

ADHD is caused by many things, and that a “heated debate” still existed as to whether

lead in fact causes ADHD. Counsel claimed that many of the children did not have

symptoms until just before trial. And he told the jury that because of the nature of the

injuries alleged – being cognitive in nature rather than physical like a broken leg – the

jury had to decide if the children’s injuries were real. Indeed, he wondered if one of the

reasons the children did not testify might have been because the jury would get a chance

to actually see them and evaluate if they were really harmed.

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Each child submitted four claims to the jury: a separate claim against each of the

three defendants for negligently allowing the children to be exposed to unsafe levels of

lead during the time when each defendant was a partner; and an additional claim against

Fluor, for negligently allowing the children to be exposed to unsafe levels of lead through

its total domination and control of subsidiaries DRIH and Leadco. The children also

sought punitive damages against each defendant. In all, the jury received 214

instructions – 150 during the liability phase of the trial, and 64 during the punitive-

damage phase of the trial. The jury filled out a total of 32 verdict forms – 16, or one for

each child during the liability phase of the trial, and likewise 16 during the punitive-

damage phase.

A unanimous jury found in favor of each child on all claims, and assessed a total

of $38,527,186 in compensatory damages. 44 A unanimous jury also found each

defendant liable for punitive damages. In the punitive-damage phase of the trial, the

children presented one witness, who testified to the value, worth, and financial condition

44

The compensatory damages awarded varied by child:

CHILD COMPENSATORY

DAMAGES AMOUNT

Preston Alexander $2,501,425

Patrick Blanks $2,981,430

Bryan Bolden $2,593,151

Tiffany Bolden $2,832,492

Nathan Davis $2,199,124

Gabriel Farmer $3,031,175

Sydney Fisher $2,366,606

Heather Glaze $2,590,290

Jeremy Halbrook $2,852,192

Matthew Heilig $2,479,350

Austin Manning $1,250,000

Jesse Miller $2,547,651

Jonathan Miller $2,167,086

Ashley Shanks $1,638,802

Lauren Shanks $2,062,850

Isaiah Yates $2,433,562

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of the three defendants. Counsel for both sides then presented closing arguments.

Counsel for the children recommended a total punitive-damage award of 208 million

dollars – 160 million against Fluor, 32 million against Massey, and 16 million against

DRIH – to send a message to defendants that they cannot come into this state and poison

our children, and that they cannot ever choose profits over our children. The jury

returned a verdict assessing a total of 320 million dollars in punitive damages, 112

million dollars more than requested, to be divided equally among the sixteen children: 15

million dollars per child against Fluor; 3 million dollars per child against Massey; and 2

million dollars per child against DRIH. This amounts to a 20 million-dollar punitive-

damage award for each child; a 240 million-dollar award against Fluor; a 48 million-

dollar award against Massey; and a 32 million-dollar award against DRIH. Together, the

sum of the compensatory-damage amount and the punitive-damage awards is

$358,527,186.

The defendants appeal.

DISCUSSION

Defendants advance seventeen points of alleged trial-court error. We can divide

those points into the following general categories: (1) the submissibility of the children’s

case; (2) trial rulings; (3) jury instructions; (4) punitive damages; and (5) post-trial

motions to reduce the compensatory and punitive-damage awards. We address each

category in turn. In so doing, we hold that the children made a submissible case against

all defendants on their negligence claim predicated on defendants’ conduct while

partners. The children’s domination claim against Fluor, however, is based on a flawed

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statement of agency law. We therefore reverse the judgment entered against Fluor on this

theory of

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