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Kristen Agnes, An Infant By Her Guardian Ad Litems v. E.I. Du Pont De Nemours and Company

March 31, 2011

KRISTEN AGNES, AN INFANT BY HER GUARDIAN AD LITEMS,
ALBERT AGNES AND LEONA AGNES AND ALBERT AGNES AND LEONA AGNES, INDIVIDUALLY, ET AL., PLAINTIFFS,
v.
E.I. DU PONT DE NEMOURS AND COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, United States District Judge:

This matter having come before the Court upon motion by E.I. du Pont de Nemours and Company, et. al. ("DuPont")("Defendant") to enforce settlement and to enjoin Agnes, et. al. ("Agnes Plaintiffs") from pursuing their claims in New Jersey state court. Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. After considering the submissions of all parties, it is the decision of this Court for the reasons herein expressed that Defendant's motion to enforce settlement and enjoin the Agnes Plaintiffs from pursuing their claims is granted.

I. BACKGROUND*fn1

Beginning in 1998, approximately 500 current or former residents of Pompton Lakes filed cases against DuPont asserting claims for property damage, personal injury, and medical monitoring based on alleged contamination from the Pompton Lakes Work Plant ("PLW"), a former DuPont manufacturing facility. The cases were consolidated and were pending before this Court from 1998 to 2004, which is when this Court held a settlement hearing and issued an Order Dismissing Actions and Approving Settlement. Recently, 113 Agnes Plaintiffs filed new suits in the Superior Court of New Jersey in Passaic County asserting claims related to the alleged contamination from PLW.

A. Agnes v. DuPont

The Agnes Plaintiffs alleged that DuPont's operation of PLW contaminated the air, soil, and groundwater. It was alleged that "DuPont's operations and waste disposal activities... caused the release of various hazardous materials and substances including VOCs [volatile organic compounds], PCBs [polychlorinated biphenyls], and heavy metals... into the environment, " and that DuPont "allow[ed] hazardous materials and substances ... to seep into the groundwater." (Ex. 2 to Dwyer Aff., Fourth Am. Compl. in Agnes (Mar. 24, 2000)). The Agnes Plaintiffs also alleged that "DuPont dumped hazardous materials into unlined lagoons and holding ponds on the Site, thereby allowing hazardous substances to be evaporated into the air and/or seep into the soil and groundwater..." Id. Additionally, the Agnes Plaintiffs alleged that DuPont's operation of PLW exposed plaintiffs to contaminants in the environment, including in soil and groundwater. Plaintiffs alleged that as a result of DuPont's actions, "plaintiffs' homes and basements, the soil and plaintiffs' yards and gardens, and the air and dust particles inhaled and ingested by plaintiffs were and are contaminated with hazardous materials and substances. Said contamination has migrated to properties owned and utilized by plaintiffs."

The Agnes Plaintiffs asserted claims for personal injury, property damage/diminution in value, and medical monitoring, as well as compensatory and punitive damages.

B. Settlement and Release

After holding a hearing on the proposed settlement, this Court entered an Order Dismissing Actions and Approving Settlement ("Order") on March 31, 2004. The Order dismissed the cases with prejudice. The Order also provided that this Court retained jurisdiction for the purpose of the settlement and enforcement of its terms.

As part of the settlement, each plaintiff signed a Description of Settlement Offer ("settlement offer") and a release. Plaintiffs claiming present personal injury or property damage were allowed to participate in binding arbitration as part of the settlement. The personal injury and property damage plaintiffs were to proceed against DuPont in a single, private, binding arbitration wherein the arbitrator was authorized to make awards in accordance with the rules set by the parties. The settlement also provided that DuPont would make a $950 settlement payment to each plaintiff who did not participate in the personal injury portion of the arbitration.*fn2 Under the settlement, DuPont also provided a Medical Test Reimbursement benefit of up to $600 per person per year for each plaintiff who met certain agreed upon residency requirements.*fn3 All plaintiffs, regardless of whether or not they participated in the arbitration, were eligible for the Medical Test Reimbursement provided they satisfied the residency requirements. The Medical Test Reimbursement fund was established for 75 years.

As part of the settlement, the parties agreed that "plaintiffs will give releases and dismissals satisfactory to DuPont."*fn4 (Ex. 6 to Dwyer Aff., Settlement Offer, at 4). Each release included a broad release of past, present, and future claims against DuPont related to PLW.

Specifically, each plaintiff agreed that in exchange for consideration he or she releases and gives up any and all claims and rights of whatever kind or description, including those claims that Releasor ever had or may have had or may have in the future as a result of any claimed injuries or damages resulting from exposure to any conditions, chemicals or materials originating on or from property now or heretofore owned, leased or possessed by E.I. du Pont de Nemours and Company in Pompton Lakes, New Jersey, (hereinafter referred to as "Pompton Lakes Works"), and including all claims which have been made or which could have been made against Releasee, as well as any claims which can be made in the future, arising out of or related to alleged facts set forth in the case Agnes v. DuPont, or out of any other actions relating to the Pompton Lakes Works, including all claims of which Releasor is aware or unaware. (Ex. 8 to Dwyer Aff., Pepper Release ¶ 1 (emphases added); see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 1.) The releases further state:

This Release is in complete satisfaction of all present and future claims for pecuniary injuries suffered by Releasor and Releasor's survivors or a spouse/relative with a derivative claim, and specifically releases all claims including, but not limited to, claims for past, present and future: personal injuries, property damage, medical surveillance costs, claims for loss of or damage to quality of life, claims for diminution of property value, claims for emotional distress, claims for fear of cancer or other disease, claims for loss of wages, prospective earnings, companionship, consortium, funeral expenses and punitive damages, medical monitoring or any other form of relief . . . . (Ex. 8 to Dwyer Aff., Pepper Release ¶ 2 (emphases added); see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 2.)

The releases further provide that the plaintiff does expressly covenant and agree forever to refrain from bringing any suit or proceeding at law or in equity against Releasee for any claim released herein. Releasor covenants and agrees to dismiss the Agnes v. DuPont action and all other actions relating to claimed injuries or damages in connection with Pompton Lakes Works as to Releasee with prejudice and without costs. (Ex. 8 to Dwyer Aff., Pepper Release ¶ 3 (emphases added); see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 3.)

The releases provide that "[t]his Release is intended to accomplish the complete and permanent disengagement of Releasee from all possible claims and litigation related to the matters referred to in this Release." (Ex. 8 to Dwyer Aff., Pepper Release ¶ 6 (emphases added); see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 6.) Each plaintiff agreed that "he/she will not seek anything further from Releasee for the claims released herein." (Ex. 8 to Dwyer Aff., Pepper Release ¶ 7; see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 7.)

The releases confirm that Releasor "has read this Release and the terms thereof and that Releasor has discussed this Release with Releasor's counsel who had fully explained to Releasor of its meaning." (Ex. 8 to Dwyer Aff., Pepper Release ¶ 13; see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 13.)

Each Releasor "expressly represent[ed] that Releasor signed this Release willingly and voluntarily." (Ex. 8 to Dwyer Aff., Pepper Release ¶ 14; see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 14.) Each release was signed by plaintiff(s) and plaintiffs' counsel and notarized. (Ex. 8 to Dwyer Aff., Pepper Release, at 5-6; see also Ex. 9 to Dwyer Aff., Pantano Release, at 5-7.) Finally, the releases provide that "[t]his Release may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of this Release." (Ex. 8 to Dwyer Aff., Pepper Release ¶ 12 (emphasis added); see also Ex. 9 to Dwyer Aff., Pantano Release ¶ 12.)

In exchange for the release of claims against DuPont, the settlement agreement provided the Agnes Plaintiffs with benefits. The arbitration plaintiffs received the right to participate in arbitration and seek an award. The arbitration process occurred from November 2006 to March 2007, including 24 days of hearings, and at its conclusion the arbitrator issued a decision with respect to the personal injury and property damage claims. Plaintiffs who did not participate in the personal injury arbitration received cash payments. Additionally, all Plaintiffs were provided with ongoing access to the Medical Test Reimbursement for up to 75 years. Plaintiffs ...


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