Judge Dismisses the Majority of Coldwater Creek Cancer Claims

Those fighting a faceless battle my feel a bit of defeat after U.S. District Court judge Audrey Fleissig on Wednesday, dismissed all but one claim in lawsuits filed against Mallinckrodt (now Covidien, which is based in the City of Hazelwood) regarding Coldwater Creek's radioactive contamination and its link to their cancers and other illnesses.

Twenty-nine individuals were involved in the lawsuit, but thousands more believe the correlation like Mary Christine Moore who commented on Patch about the situation.

"Many of my 1968 graduating class are dead (of) cancer," said Moore whose family lived on Stoneham Drive in Berkeley.

Moore said her mother died of ovarian cancer in 2006. Her aunt and uncle lived next door, her uncle had colon cancer and died last year of lung cancer.

"The man across the street died of lung cancer, his wife died of breast cancer, a girl up the street that I grew up with is in stage 4 ovarian cancer," Moore said.

There is also Patty Peterson who wants to help her friend who grew up in Hazelwood and is fighting colon cancer seek justice.

"Over 10 years ago, she had a brain tumor and was cancer free until recently," she emailed Patch. "Although, she may not have the strength to fight this right now, I do and would like to see her get some kind of restitution for what she is going through and has gone through."

What the Ruling Means

Fleissig granted the requests of attorneys for Mallinckrodt and other defendants to dismiss seven claims of negligence, emotional distress and liability under Missouri laws.

"While the complaints contain many allegations about various activities at the sites in question, there are virtually no allegations concerning which defendant committed which actions or which defendant is allegedly involved at each location," court documents read. "These Defendants argue that the complaints are especially deficient with respect to Covidien, Inc., (Mallinckrodt) because the complaints fail to allege any wrongful act by Covidien, Inc."

Fleissig's decision also asserts the suit doesn't direct contamination to the St. Louis Downtown Site (SLDS), which was Mallinckrodt's actual production location for the uranium it processed for the U.S. government's nuclear weapons complex.

"Furthermore, Plaintiffs do not claim exposure to the alleged contamination at the SLDS," court documents read. "Instead, Plaintiffs allege injury based solely on exposure to contamination at separate sites, SLAPS and other North St. Louis County Sites, which have allegedly contaminated Coldwater Creek.

"Accordingly, while Plaintiffs have alleged the Mallinckrodt defendants’ involvement at the SLDS, they have made no allegations that link the Mallinckrodt defendants’ alleged involvement at the SLDS site to Plaintiffs’ exposure or injuries."

The eighth claim filed involves injuries exposure to nuclear materials caused. That was not dismissed. Fleissig did give lawyers for the residents a deadline of  May 10 to show that the injuries occurred no more than five years before the suit was filed and to link direct levels of exposure, to meet Missouri’s statute of limitation rules and the Price-Anderson Act (PAA), a federal ruling passed in 1957 that governs liability-related issues for all non-military nuclear facilities constructed in the United States before 2026. It was designed to ensure adequate funds would be available to satisfy liability claims of members of the public for personal injury and property damage in the event of a nuclear accident.

"It is further ordered that Plaintiff shall have up to and including May 10, 2013, to file amended complaints that sufficiently plead a cause of action under the PAA," court documents read. "Failure to do so will result in dismissal of these actions."

Most of the residents believe they were sickened from growing up in housing developments built around the creek in north St. Louis County in the 1960s and 1970s.

TorHoerman law firm is the lead council representing the residents that live or grew up North County. The Edwardsville firm has been mum since Wednesday's action, but released a statement with its co-council Napoli Bern Ripka Shkolnik, on Friday.

“Motions to dismiss are common practice in cases like this, and often times counts are stricken or amended," the statement reads. "In this instance Judge Fleissig has essentially limited the claims to the Price-Anderson Act which is federal law that controls nuclear radiation injury claims.

The firm reassured the ruling "is not a great surprise."

"The cases have not been dismissed completely; they are limited to the Act," according to the statement. "We are, however, concerned with the order asking us to plead a higher standard of proof, but plan to continue to fight on behalf of our clients.”

The firm, it is hosting two town hall style meetings Wednesday and Thursday in Hazelwood and Florissant. 

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Another Disappointing Blow

The court's decision is another dissappointment for those linked to Coldwater Creek. .  Still, those that have lived in the area and played in the creek as children, dismissed the report because it didn’t account for people who moved out of the area after growing up near the creek during the time when it tested positive for higher levels of radioactive material. The time period studied also only included the late 90s through 2000s; but the state says it was asked to look at a later date and can study any time period.

Coldwater Creek and the North County Contaminated Sites

The Formerly Utilized Sites Remedial Action Program (FUSRAP) began in 1974 to identify, investigate and clean up or control sites through the United States that had became contaminated from the nation’s early atomic weapons and energy programs during the 1940s, 1950s and 1960s. Activities were performed by the Manhattan Engineer District (The Manhattan Project), or under the Atomic Energy Commission, prior to the Department of Energy being formed.

As a part of these projects, the U.S. government contracted the Mallinckrodt Chemical Company to use its downtown facility to extract uranium from ore so it could be sent to other facilities. The extracted uranium was then sent to other facilities for enrichment. This occurred from 1942-1957. The program covers multiple sites in the St. Louis area both in St. Louis County and in St. Louis City.

The St. Louis Downtown Site, (SLDS) is the source of the radioactive material. This location is where Mallinckrodt processed uranium for the U.S. government nuclear weapons complex. It was a 45-acre active chemical manufacturing facility located just 300 feet west of the Mississippi River.

The nuclear weapons' waste materials were stockpiled at several sites in North St. Louis County including at Lambert-St. Louis International Airport. This site became known as the St. Louis Airport Site (SLAPS).

In the 1960s and 1970s, some of the waste material was sold to a private company, which transported the material to another location north of the SLAPS, and on Latty Avenue in the City of Hazelwood. This site became known as the Hazelwood Interim Storage Site (HISS).

Together, the North County FUSRAP site consists of the SLAPS, HISS and 78 vicinity properties known as SLAPS VPs. The U.S. Department of Energy was responsible for the remediation of the FUSRAP sites from the late 1970s until 1998. At that time the U.S. Army Corps of Engineers (USACE) became the lead on the project.

There have been more than 100 vicinity properties surrounding the SLDS, the SLAP and the HISS that require additional investigation to determine if contamination exists at concentrations requiring remediation. According to the Missouri Department of Natural Resources, the total estimated volume of contaminated soils, sediments and debris are approximately 1 million cubic yards.

Parts of Coldwater Creek are also a SLAPS Vicinity property. The creek has been affected by runoff from the FUSRAP sites. Coldwater Creek passes through several north St. Louis County communities including Florissant, Hazelwood, Black Jack and Spanish Lake. It was contaminated with uranium, thorium and radium.

What's Next

Covidien purchased Mallinckrodt Inc., and ceased using its named, but the company announced in 2012 its pharmeceutical spinoff would resume the Mallinckrodt name, and has begun doing so.

Lynn Phillips, media relations manager at Covidien in Hazelwood sent Hazelwood Patch its official statement on the matter which states Mallinckrodt has nothing to do with remediation efforts.

"The St. Louis Airport Site was used for disposal of demolition debris from buildings decommissioned and demolished nearly 50 years ago by a third party demolition contractor under the oversight of the US government. Some of this debris was from buildings formerly used for uranium processing dating back to the 1940s at a Mallinckrodt site in St. Louis. The U.S. Army Corps of Engineers in coordination with the Department of Energy is now responsible for the environmental remediation of the St. Louis Airport Site, which includes Coldwater Creek, under its Formerly Utilized Sites Remedial Action Program.  This remediation is nearly complete.  Mallinckrodt is not involved in the remediation activities that have been conducted at the St. Louis Airport Site."

Mallinckrodt is not the only corporation listed in the suit. Several companies involved in the manufacture and disposal of the nuclear waste are also listed in the suit.

The people suing Mallinckrodt are seeking compensation similar to that awarded to the company’s former workers. This would include payment of medical expenses and a lump sum up to $150,000.

Once case header shows the lead plaintiff as Scott McClurg. The 40-year-old is a professor at Southern Illinois University Carbondale who grew up in Florissant and has been treated for brain cancer. He and other North County residents reconnected on social media.

There are currently more than 6,000 active members of a community action Facebook Page devoted to investigating the possibility of a cancer cluster around the creek entitled: Coldwater Creek Just the Facts Please, as well as a Coldwater Creek blog spot.

If you think your illness may be linked to the creek there is a form tracking all instances. To fill it out click here: https://www.surveymonkey.com/s/coldwater_creek_missouri

Click here to read Coldwater Creek Nuclear Contamination News Updates.