TAMPA, Fla. (Legal Newsline) - Lawyers are signing up more and more clients to sue a company that recycles lead batteries in the Tampa, Fla., area, claiming a lack of safety put a harmful amount of the substance on and in their bodies.
But Gopher Resource, which drew the ire of OSHA last year, says it provides more than 8,000 hours of employee safety training each year, plus town hall-style meetings regarding safety initiatives and spent $230 million on improvements at its Tampa facility, one of 10 such smelters in the country.
"Gopher provides lead-check stations, mandatory vacuum and boot wash stations, decontamination wash stations and shower facilities with de-lead soap, and even personal onsite laundry services," the company wrote in court documents filed in Hillsborough County Circuit Court.
But plaintiff lawyers have recently portrayed the plant, which features a large furnace to melt down lead batteries (like car batteries) to be recycled, as a hotbed of toxic activity threatening a community six miles east of downtown.
"Its premises are adjacent to and within a community comprised of residential homes, auto-repair shops, yards, playing fields and places of worship," a complaint says, also pinning blame on premises owner Envirofocus for creating a "high degree of risk of harm to the property of others" from the presence of lead dust, molten lead, cadmium, arsenic and sulfur dioxide.
Litigation began in June 2021 when employee Koungnum Brown tried to blame Gopher for elevated blood lead levels in his son. Brown's own elevated blood lead level became known during a trip to the hospital after molten lead "erupted from the furnace" and caused a third-degree burn to his foot, the lawsuit says.
The suit says Brown took lead dust home on his clothes, hair and skin. Those clothes were washed in the same cycles as his son's clothes, exposing him as an infant, he says.
Brown's son was diagnosed with gastroesophageal reflux disease, autism, attention deficit hyperactivity disorder, asthma, cosinophilic esophagitis and seizures. The Florida Department of Health told his mother that testing revealed he was the 17th child of a Gopher worker with elevated blood lead levels.
But Judge Christopher Nash dismissed most of Brown's claims in December 2021. Only a negligence claim survived, while strict liability claims against Gopher and Envirofocus and a negligence claim against Envirofocus were thrown out. An amended complaint is trying to salvage the case.
Gopher says strict liability can't be alleged because its activities do not meet the six factors required for them to be considered "ultrahazardous."
"The amended complaint consists of a series of criticisms of Gopher that are immaterial to Plaintiff's off-campus person-to-person contamination theory and that otherwise lack facts sufficient to show how Defendants violated any duty owed to third parties like Plaintiff," a motion to dismiss says.
Firms in and outside of Florida mount a charge by signing up employees to file suit on behalf of themselves. Personal injury heavyweights like Napoli Shkolnik and Farrell & Fuller are among the out-of-state lawyers getting involved.
On Sept. 16, 43 former and current employees, including Brown, sued Gopher, alleging a variety of health problems blamed on lead exposure. They say poor ventilation and shoddy respirators that lose their usefulness when sweat breaks their seal have created conditions like rashes, emotional disorders, breathing and digestive issues, headaches, memory loss and personality changes.
On Nov. 2, four different firms filed suit on behalf of 22 more former and current employees, alleging lead accumulation so thick it had to be bashed off of stairs that employees use to access the furnace with a sledgehammer.
Standing water caused by plumbing problems created "lead cement" impossible to eradicate with the company's vacuum system, the suit says. One of the plaintiffs, Kawahon Duncan, is a former furnace operator and president of the employee union who recently sued the company for whistleblower retaliation.
Duncan's Nov. 28 complaint says he sent an email in January 2020 regarding the presence of toxic gases in the refining cool down room and the team lead office, complaining he had experienced discomfort in his mouth and breathing. A later email asked that showers and locker rooms be cleaned and alleged a co-worker wore his helmet and did not clean his boots in the furnace cool down room, in violation of company policy.
Further emails through 2020 complained about similar behavior from other employees. Duncan was quoted in an April 2021 Tampa Bay Times article regarding Gopher's "damage-control mode" that said Gopher was aware of safety issues but did not make them a priority until outside attention came. The newspaper published a series titled "Poisoned."
"They've had numerous occasions where they could have rectified these issues and they did nothing... Safety is not their No. 1 priority. They say it is, but it is not because their actions don't back it up," he is quoted as saying.
Later that month, he was suspended for interfering with an OSHA investigation and received a written warning. But in May, he used his cell phone to record video of "illegal conditions" on the shop floor, earning him a final written warning.
He then submitted a 10-page report to OSHA on safety violations. In July of that year, he was fired, and 14 months later he filed his whistleblower complaint through attorney Andrew Salzman of Trinity.
In September 2021, OSHA proposed $319,000 in penalties for exposing workers to unsafe levels of lead. The findings are cited in the personal injury complaints.
Ben Crump Law of Tallahassee joined Farrell & Fuller and Napoli Shkolnik (who list their Puerto Rico offices) for the Sept. 16 complaint. They transferred that case to Koungnum Brown's son's case, which Napoli Shkolnik and Crump filed with Swope, Rodante of Tampa.
Gopher hired Wiley Rein of Washington, D.C., to fight that lawsuit.
Florida's Frank Charles Miranda, Connecticut's Ventura Law, Tennessee's Frazer PLC and St. Louis' Onder Law filed the Nov. 2 complaint.