Fennville Residents' Lawsuit Against Birds Eye Ongoing In U.S. District Court
Five years ago, 60 residents living east of the City of Fennville sued Birds Eye Foods, now Pinnacle Foods, because their wells were contaminated with high levels of Manganese, Iron and Arsenic.
Birds Eye had a permit from the Michigan Department of Environmental Quality (DEQ) to spray waste water on their own fields, but the water seeped down into the aquifer and eventually contaminated the water wells of local residents living around the sprayed area.
This was the basis for the lawsuits.
Attorney Joni Fixel represented Randall Lozar, et al, which consisted of several residents around the plume area. Their lawsuit was later dismissed on appeal, according to a statement sent by Chris Spina of Pinnacle Foods, New Jersey headquarters.
Spina’s statement read: “The case, Randall Lozar, et al vs. Birds Eye Foods, Inc., was dismissed on appeal by the U.S. Court of Appeals for the 6th Circuit Court on June 27, 2013.”
According to Fennville resident Kari Craton, her lawsuit, which included 19 plaintiffs, is still ongoing and active.
Her attorney is Todd Ommen with the New York firm Weitz & Luxenberg. Craton’s lawsuit is filed under: Western District of Michigan Southern Division, Diana Bennett et al., vs. Bird’s Eye Foods LLC; Case # 1:10-cv-541.
U.S. District Court Chief Judge Paul L. Maloney is presiding over that case.
Discussing the case, Ommen said, “We are done with the discovery phase such as the interviews with witnesses, reading documents, and are now in the dispositive motions phase.
“According to the court records the case will come up on the docket for trial early next year, February 25, 2014,” added Ommen. “There are seven households still included in the suit with 19 individuals.”
Noting the Birds Eye case which was dismissed, Craton said, “I think the case brought by the Attorney Joni Fixel on behalf of approximately 60 residents was dismissed because of errors in the filing plus it wasn’t submitted on time.
“Our attorney out of New York - Weitz and Luxenburg - still has a viable suit. About half of the people originally included in the suit were not in the plume area, so they were dropped, but then there were about 50 residents still included.
“We went to mediation with Birds Eye, but even their lawyer said, ‘there was no reason for them to mediate.’ Birds Eye settled with some of the people suing; they got very small settlements,” added Craton.
“Seven households are left. We all live on M-89 and a couple of residents live on 54th Street. We are still in litigation. Meditation didn’t work for us so we’re going to trial.”
Craton said she suffered a series of health problems after the water contamination problem affected her property. She has had a transplant and now has Diabetes Type 1. Several people were sick in the contaminated area, but doctors were hesitant to definitely assign blame to the contaminated well water.
“Sometimes in the middle of the night we still wake up and smell a God-awful stench,” reports Craton. “Birds Eye is still spraying the fields although I think they are only supposed to spray the waste water in limited quantities now. This is my understanding.”
Craton continues, “Some of the higher-income home’s wells in the area were not tested. I think Birds Eye didn’t test them because that would bump up the income level of the properties that were affected.”
Rose Ramirez, one of the original plaintiffs against Birds Eye has this to say: “Birds Eye offered us a settlement with the rest of the group. Everyone was in a different situation. Birds Eye said, ‘Accept our offer now or you may not get anything.’ So Joe (husband) and I took a small settlement. We’re now hooked up to city water.”
In response to a request for a comment on the pending lawsuit in Michigan’s U.S. District Court, Spina provided this statement: “We cannot comment on pending litigation.”
Craton said she believes area residents are getting better, safer water now that they are hooked up to the Fennville city water system, although there are some issues.
“We still get some staining and sometimes it smells like bleach and sometimes it’s crystal clear,” she said.