Four members of a Millsboro-area family each received $2,500 to settle a class-action lawsuit claiming they and others suffered personal injuries as a result of improper waste disposal practices at a Mountaire Farm poultry plant.
Now, the family is asking a Superior Court judge to modify the $65 million settlement, claiming their original attorneys failed to tell them they could have opted out of the agreement with the plant, which violated state and federal regulations. Withdrawing from the settlement would have allowed the family to seek more in damages to help care for their 5-year-old daughter, who they say in the court filing was born with severe disabilities, leaving her unable to walk or speak as a result of Mountaire’s practices.
“In fact, not only did L.H.’s lawyers fail to tell them they could opt-out, or counsel them on the advantages of opting out, they affirmatively advised them to partake in the claims process via form letter,” according to court documents that only identify the child by initials. “And only days after the opt-out deadline passed, her retained lawyers decided to withdraw from representing her without any prior notice.”
Chase Brockstedt, one of the attorneys who filed the class action case, said it is false to say the family did not receive a notice to opt out.
“It’s acknowledged in the papers that were filed that they did receive notice, with directions how to opt out,” Brockstedt said. “Any argument that we were obligated to provide them with advice to opt out demonstrate somebody that doesn’t understand how being class counsel [has] ethical constraints because we’re not permitted to advocate on behalf of one class member to the detriment of another class members.
“We have to represent all class members equally.”
Thomas Crumplar, whose law firm now represents the girl and her parents, Tiffany and Jose Hernandez, would not comment for this article.
Court documents obtained by Delaware Online/The News Journal say the girl was prematurely born on March 24, 2017, suffering “catastrophic” physical and cognitive damages caused by her pregnant mother’s exposure to nitrates in drinking water.
Drinking water contaminated with nitrates from a nearby Mountaire poultry plant was one of the class action lawsuit’s claims.
The child, according to court documents, has been diagnosed with cerebral palsy, developmental delays and is non-verbal, other than occasionally being able to say “mama” and a few other simple words.
The child does not walk, other than doing “commando crawl” on her elbows, and her right arm remains in a rigid or spastic condition. She also suffers from epileptic seizures and takes antiseizure medicine daily, according to the court papers.
As a result of her disabilities, the court document estimates the child’s life-long care to be in the range of $8.6 million to $21 million.
“L.H. obviously needs long term care related to her cognitive injuries, her motor deficiencies, and her gastrointestinal problems,” the motion said.
The class action lawsuit and settlement with Mountaire
The lawsuits started in the wake of a violation notice the Delaware Department of Natural Resources and Environmental Control issued to Mountaire in November 2017, in which the state said Mountaire had been violating its waste-disposal permits by spraying too many contaminants onto hundreds of acres of farm fields at its Millsboro-area operation, impacting the groundwater flowing beneath them.
The factory released hundreds of gallons of waste disposal that contained up to 41 times the permitted levels for nitrates and up to 5,500 times the permitted level for fecal coliform, among other pollutants, DNREC said.
Background:Millsboro neighbors: How long have we been drinking tainted water?
Exposure to high levels of nitrates reduces the blood’s ability to carry oxygen to all parts of the body. For some, exposure can lead to decreased blood pressure, cramps, difficulty breathing and even death, according to the Centers for Disease Control and Prevention.
State environmental regulators announced in 2019 they had reached an agreement with Mountaire to resolve the years of environmental violations. The agreement — or consent decree — called on Mountaire to pay a fine that could reach more than $500,000, completely upgrade its wastewater treatment plant, monitor the groundwater for pollution, and provide impacted neighbors with access to clean drinking water.
As a settlement to the class action suit was being worked out, court documents filed Thursday claim Sussex County Superior Court Judge Craig Karsnitz issued an order on January 11, 2021, which included a notice and opt-out provision to the settlement.
More:Settlement in Mountaire drinking water case leads to $65M fund for affected families
“Class members who wish to opt-out and exclude themselves from the settlement may do so by notifying the claims administrator in writing postmarked no later than 40 days after the entry of this order,” Karsnitz’s order said.
That opt-out deadline was Feb. 20, 2021, according to the court document.
The Hernandez family
The Hernandez family received a letter on Feb. 9, 2021, from their class action lawyers telling them about “a proposed $65 million settlement.”
While the same letter reminded them to register their claims, court documents said it did not mention the right to opt out. Nine days after the opt-out deadline — March 1, 2021 — the Hernandez family received a letter telling them they would no longer be represented by the original lawyers.
The letter, according to the court document, said their original lawyers were “precluded from submitting information on behalf of any class member to be used in the allocation process. Submission of this information will be your responsibility.”
The Hernandez family did as they were advised by their then-attorneys and submitted a claim, according to the court document.
In April 2021, Judge Karsnitz approved a $65 million settlement claiming more than 3,000 people neighboring the Mountaire poultry plant were eligible for their share of the agreement.
By remaining in the class action, court documents say a claims administrator ended up awarding the child $2,500 for “a lifetime of catastrophic care.”
“This is so jarring that it expresses the extraordinary type of situation which demands relief from the orders of approval,” the court document states.
But Brockstedt said he believes the family belongs in the class action.
“Frankly, it’s the only option for them,” he said.
Environmental tests searching for nitrates exposure to the family’s home during the pregnancy could not support a link between the girl’s birth defects and Mountaire’s spray irrigation or sludge disposal practices.
“Scientifically we couldn’t get there and also we had it evaluated medically and we could not get there,” Brockstedt said. He added that the new lawyers have not provided evidence to the contrary.
Contact Esteban Parra at (302) 324-2299, eparra@delawareonline.com or Twitter @eparra3.
