In a major setback for three former employees of Stauffer Chemical Co., a judge has refused to give class-action status to their lawsuit against the company.
Ivan Hoyte, his son, Norman Hoyte, and Stanley Malcolm had asked Pinellas-Pasco Circuit Judge Bruce Boyer to expand their lawsuit to cover about 1,800 former employees. Now, if they want to continue their lawsuit, they'll have to do it alone.
While Boyer's decision does not necessarily end the case, it could, said Wil Florin, one of the attorneys for the former Stauffer workers.
"This ruling was not an adjudication on the merits of whether or not these workers were exposed unnecessarily to hazardous substances," Florin said. "It's simply a ruling as to whether or not the three named plaintiffs could represent a class of 1,800 workers that worked there over the years.."
But without class action, the cost of continuing the lawsuit makes it impractical, he said.
Florin's clients still have not decided whether to appeal the decision _ they have until December to choose that option _ or whether to move on with the case without class-action status. So far, the 4-year-old lawsuit has cost "several hundred thousand dollars," Florin said, and that has all been pro bono work.
"We were surprised by the ruling," Florin said. "We felt pretty certain we were going to get certified. We felt the law and the facts supported us. Obviously the judge disagreed."
The three employees were seeking to make Stauffer pay for a court-supervised medical monitoring program to detect diseases that any of the former workers may contract. The Stauffer plant processed phosphorus just outside of Tarpon Springs from 1947 to 1981.
When the plant closed, it left behind more than 30 toxins in the soil and water. The U.S. Environmental Protection Agency declared the property a Superfund cleanup site in 1994.
The judge's 111-page ruling, filed Nov. 6, is based on a four-day hearing in June. The two sides called a total of a dozen witnesses. Half were experts.
"Based on the factual record as well as expert testimony presented during the four-day evidentiary hearing, we believe the decision was correct both as a matter of fact and as a matter of law," said Chris Coutroulis, an attorney for Stauffer.
The judge ruled against the employees for several reasons.
The attempt to define who should be included in a class-action lawsuit was "inadequate and overbroad," Boyer wrote.
He also ruled that the three men could not act as representatives for a class of Stauffer workers because they failed to show a basic understanding of the case, had difficulty remembering facts or were "impeached during cross-examination as a result of giving testimony inconsistent with . . . earlier sworn testimony."
The men failed to understand, the judge noted, that the case was only about getting medical monitoring from Stauffer _ not getting money from the company.
"They apparently remain uninformed about fundamental aspects of this case, even as to important changes in the nature of the relief being sought, so that the case has effectively become lawyer-driven litigation," Boyer wrote. "There is no active class representative steering the class action ship."
The three men could not be reached for comment Wednesday. At the time of the hearings in June, the men, who ranged in age from their early 50s to their late 70s, lived in Clearwater and St. Petersburg. Florin declined to make them available for interviews.
Florin likewise declined to discuss the ruling in detail.
"All I can say is that I disagree on a number of grounds," he said.
Some who followed the case were shocked by Boyer's ruling.
"When I heard about it, I was just plain astonished," said Mary Mosley, a local activist who has monitored Stauffer for 26 years. "I was so taken aback that I just couldn't do anything for a whole day. I couldn't believe the judge would rule in this manner. All they asked for was medical monitoring."
The case was filed by six former employees in May 1998, about 17 years after the plant stopped operations. They alleged exposure to various substances while working at the plant. Two of the six who brought on the case voluntary dismissed their claims and a third, Robert Vernon Hudson, died more than a year ago.
Stauffer's top executive said the company is pleased with the judge's ruling.
"It was an extensive investigation. All the facts were presented. There was scientific testimony and a very extensive period of time to review the facts," said Brian Spiller, president of Stauffer Management Co. The judge "came with absolutely the right decision. We think it should put an end to this circumstance."
The federal Agency for Toxic Substances and Disease Registry is working with the University of Florida to identify former Stauffer employees and former students of a nearby elementary school from 1978 to 1981 "for possible health study activity," said agency spokesman Paula Stephens.
There is also a public health assessment due for completion this winter, Stephens said. That assessment "looks at possible past, present and future exposure to toxic chemicals in the environment," she said.
Even though Boyer's decision was a disappointing blow, "I haven't heard the fat lady sing yet," Mosley said.
"For years, we tried to convince them that the Stauffer site was polluted and here Pinellas County and the state and everybody told us everything was fine, fine, fine," Mosley said. "And here the judge says there's not enough evidence for a class-action suit. Here we go again."
_ Ed Quioco can be reached at (727) 445-4185 or quiocosptimes.com.