Cynthia Y. Cobbs
The 1st District Appellate Court has ruled the statute of limitations prevents a far south suburb’s residents from suing a company that contaminated their drinking water to cover costs for any future medical monitoring.
The ruling came Thursday in an unpublished order that held Sauk Village residents are two years too late in pursuing the class-action lawsuit against YRC Worldwide — the company whose trucking facility was found responsible for contaminating the town’s water with a potentially cancerous chemical called vinyl chloride.
Lead plaintiffs Kenneth Allen and Sandra Allen argued they could pursue the case because the statute of limitations should have started in 2012 when they learned who could have contaminated the water. The appeals panel, however, ruled the two-year clock started ticking when Attorney General Lisa M. Madigan notified the town about the issue in 2009.
In her notification, Madigan ordered that either the water be treated to remove the chemical or the contaminated well be shut down. The village opted to shut down the well, and it has not been used since.
In one of two consolidated lawsuits filed in 2013 in Cook County Circuit Court against YRC and Roadway Express Inc. — the trucking company that occupied the facility — the plaintiff class sought an order that would require the defendants to fund periodic medical monitoring. They want the monitoring to determine whether ingesting the contaminated water has harmed them.
The defendants moved to dismiss the case, citing Madigan’s 2009 notification to argue the statute of limitations for personal injury started running when the village first learned that the contamination existed and presented potential health risks.
The plaintiffs argued the statute of limitations began in July 2012, when a letter sent from K-Plus Engineering identified YRC as the potential contamination source.
Circuit Judge LeRoy K. Martin Jr. dismissed the suit in September 2014, holding not only that the statute of limitations prevented the plaintiff class from pursuing the case but it also didn’t sufficiently allege an injury that needed medical monitoring.
Justice Cynthia Y. Cobbs’ 12-page order affirmed Martin’s decision, noting the statute of limitations on a personal injury begins to run as soon as a party learns that an injury occurred and was wrongfully caused.
The panel held that the plaintiffs were aware the man-made chemical did not belong in the water supply, even if they could not pinpoint the exact means how the contamination got there.
“If it is dangerous to drink or bathe in, it is obvious that the chemical’s presence in their bathing and drinking water was the result of wrongful conduct,” Cobbs wrote. “Even if ownership of vinyl chloride is ‘legal,’ placing the allegedly dangerous chemical in someone’s bathing or drinking water plainly would be wrongful.”
Although the plaintiff class didn’t learn who may have contaminated the water until 2012, the panel held, they were still obligated to conduct an inquiry into who caused the alleged injuries. And the plaintiffs’ argument that they needed an engineer to discover fault is “irrelevant,” Cobbs wrote.
“Plaintiffs should have conducted an investigation, including hiring a professional if necessary, as soon as they discovered their alleged wrongful injury,” she wrote. “Plaintiffs fail to allege why they could not have hired someone to conduct an investigation in 2009, after they were put on notice of their injury.”
Kevin T. Van Wart, a partner in Kirkland & Ellis LLP’s Chicago office who represents the defendants, said he was pleased with the order.
“It was a carefully written and well-reasoned order, and it got the law exactly right,” he said.
Van Wart said the panel was able to see the plaintiffs had a chance to bring a properly timed suit against the companies, since the contamination was “very well publicized.”
“It was the subject of (Illinois Environmental Protection Agency) notices, and so if anybody had any concern at that time, they could have tried to bring an action. They didn’t,” he said. “This was something that was cooked up after the fact, and so it was properly rejected under statute of limitations principles.”
The plaintiffs’ attorney, S. Jerome Levy, a partner with S. Jerome Levy & Associates P.C., said he thought the plaintiffs presented a good case with strong arguments, and they were disappointed to learn the panel didn’t agree.
Levy said he would like to conduct more research and weigh all of the plaintiffs’ options before deciding what step to take next, but they “will obviously do something.”
One option, he said, could be to pursue the case for minors who hadn’t turned 20 by the time the 2009 notice went out. He said those people might still be able to pursue the case since they weren’t old enough to do so when the incident happened.
He said it remains unclear how that would come to be, though, because there are still “too many ‘ifs’” on the case — such as whether the Illinois Supreme Court could hear that issue or whether the plaintiffs will decide to petition the high court at all.
“Just hang in there,” he said. “That’s all I can say.”
The plaintiffs were also represented by Edmund J. Scanlan, a partner at Scanlan Law Group, and Jonah J. Orlofsky, owner of the Law Offices of Jonah J. Orlofsky.
The defendants were also represented by Brenton A. Rogers, another Kirkland & Ellis partner, and Brett A. Nerad, an associate at the firm.
Justices James Fitzgerald Smith and David Ellis concurred in the order, Kenneth Allen et al. v. YRC Worldwide, Inc. et. al, 2015 IL App (1st) 143053-U.